Clean Water Act Model Pleadings and Discovery From Current and Recently Litigated Cases V.1


Clean Water Act Model Pleadings and
Discovery From Current and Recently
Litigated Cases
Compiled By: U. S. Environmental Protection Agency
Office of Enforcement
National Enforcement Investigations Center
Denver, Colorado 80225
For Information Contact (303) 236-5128
FTS 776-5128
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ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF ENFORCEMENT
NATIONAL ENFORCEMENT INVESTIGATIONS CENTER
BUH.DING 53, BOX 25227, DENVER FEDERAL CENTER
DENVER, COLORADO 80225
DATE April 18, 1991
MEMORANDUM
SUBJECT: Clean Water Act Pleadings/Discovery Manuals
FROM: Carroll G. Wills
Deputy Director, NEIC
TO: William D. Anderson, Chief
Air, Water, Toxics and General Law Branch
Office of Regional Counsel, Region 1V
As a result of a request from Region V, w ,e. haves assembled model pleadings
and discovery documents from recently litigated Clean Water cases. We believe
that these manuals could be of use to you and.your staff and have enclosed a set of
the manuals.
We appreciate the assistance of Kittybelle Rivera, Stedman Southall, and
Edwin Schwartz of your staff who provided us with documents for these ‘manuals.
As you may know, this set also contains materials contributed by the various EPA
Regional Counsel Offices.
I hope you find this compendium to be a useful reference, Please contact
me or Chuck Aschwanden at FTS 776-5128 if you have any questions or
comments.
Enclosure
cc: Frank M. Covington, Director, NEIC (w/o enclosure)
John Barker, Regional Counsel, Region IV, (w/o enclosure)

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FOREWORD
This three (3) volume set of pleadiri g and’discovery requests represents the
work of numerous EPA Regional and Headquarters offices as well as the
Department of Justice. The documents are primarily from Clean Water Act cases
which have been litigated in the last three years. Included in. these materials are
complaints, discovery requests served by the Uniti d States as well as responses to
defendants’ discovery.
The pleadings and discovery generally are orgaiiized by the subject matter
of the case. Where a more complete casc file was assembled for a particular case,
a separate case file was create 1. A table of’cas appears in the beginning of
Volume 1 and provides citations to the c ses which are thc sowr ce .of. these
documents as well as a cross-reference to th volume and section where the
documents are located in this set.
In an effort to reduce duplication, some portions of certain -documents have
been deleted. For example, the instructions and definitions which are part.,of
virtually every discovery request have no I. ‘ repro uc except for those
requests included in the case files section. For the mcsl p t, signature pages
have been retained to identify the attorneys involv - d in each case.

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TABLE OF CASES
U.S. v. Ashland Ethanol. Inc.. and Ohio Farm Bureau. Inc. and Publicker
Gasohol. Inc. and UGI Ethanol DeveloDment C0rD.. trading under the name of
South Point Ethanol. Corp.. a joint venture partnership. South Point. Ohio
Civil Action No. C-1-89-012
(S.D. Ohio, 1989)
Bayou Marcus Livestock and Agricultural Company. a Florida General
PartnershiD and the Colony Bayou Marcus ComDanv. a Florida General
Partnership v. U.S. EPA and U.S. Army Corps of Engineers
Case No. 88-30275-WEA
(N.D. Florida, 1988)
U.S. v. The Borough of Bellefonte
Civil Action No. CV-89- 1481
(M.D. Pennsylvania, 1989)
U.S. v. Brazos River Authority
Civil Action No. W85CA91
(W.D. Texas, 1985)
U.S. v. Caribe Tuna. Inc .
(to be filed in 1991)
(D. Puerto Rico)
U.S. v. City of Bartlesville
Civil Action No. 89-C-060C
(N.D. Oklahoma, 1989)
U.S. v. City of Berrvville
Civil Action No. 87-3010
(W.D. Arkansas, 1987)
U.S. and Indiana Stream Pollution Control Board of the State of Indiana v. City of
Gary. a Municipal Corporation. and the Gary Sanitary District
Civil Action No. H78-29 AND H86-540
(N.D. Indiana, 1987)
U.S. v. City of Lvnnwood
Civil Action No. C87-1088C
(W.D. Washington, 1987)
U.S. v. City of Neptune Beach
Civil Action No. 89-634-CIV-J-14
(M.D. Florida, 1989)
U.S. v. City of Phoenix
Civil Action No. 89-1646PHXCAM
CD. Arizona, 1989)

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U.S. v. the City of Terre Haute. Indiana. a Municipal Corporation. and the State of
Indiana
Civil Action No. TN-87-207-C
(S.D. Indiana, 1988)
U.S. v. City of Wildwood
Civil Action No, 89-116-EW-OC-14
(M.D. Florida, 1989)
U.S. v. Construction Industries. Inc .
Civil Action No. 89-4 18
(D. New Hampshire, 1989)
U.S. v. CR Industries. Inc .
Civil Action No. 89-4006
(D. S. Dakota, 1989)
U.S. v. Crown Cork de Puerto Rico. Inc .
Civil Action No. 88-01920
(D. Puerto Rico, 1988)
U.S. v. Digital Equipment Corporation
Civil Action No. 89-01233-PG
(D. Puerto Rico, 1989)
U.S. v. Eagle-Picher Industries. Inc .
Civil Action No. 87-5100-CV-SW-8
(W.D. Missouri, 1987)
U.S. v. Empire Plating Co.. et. p1 .
Civil Action No. C85-1580
(N.D. Ohio, 1985)
U.S. v. F.B. Purnell Sausage Company. Inc .
Civil Action No.. 87-24
(E.D. Kentucky, 1987)
U.S. v. Gerbaz
Civil Action No. 89-M-554
(D. Colorado, 1989)
U.S. v. Haverstraw Joint Regional Sewerage Board
Civil Action No. 89-CIV-6355 (MEL)
(S.D. New York, 1989)
U.S. v. Holly Farms of Texas. Inc .
Civil Action No. L-87-119-CA
(E.D. Texas, 1987)

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U.S. v. Inland Steel Company
Civil Action No. H86-295
(N.D. Indiana, 1986)
U.S. v. James River Paper Company
Civil Action No. 89-30080-F
(D. Massachusetts, 1989)
U.S. v. Koch Refining Company
Civil Action No. 3-87-708
(D. Minnesota, 1987)
U.S. v. Koppers Company. Inc.. and Toledo Coke Corporation
Case No. C87-7218
(N.D. Ohio, 1987)
U.S. v. Menominee Paper Company. Inc.. and Bell Packaging Corporation
Case No. M88-108 CA2
(W.D. Michigan, 1988)
U.S. v. Pennzoil Exploration and Production Company
Civil Action No. 89-209-ER
(W.D. Pennsylvania, 1989)
U.S. v. Promised Land Mining
Civil Action No. A86-005
(D. Alaska, 1986)
U.S. v. Puerto Rico Administration of Corrections
Civil Action No. 90-2119(JAF)
CD. Puerto Rico, 1990)
U.S. v. Quaker State Corporation
Civil Action No. 88-306-ERIE
(W.D. Pennsylvania, 1988)
U.S. v. Roll Coater. Inc. .
Civil Action No. I-89-828C
(S.D. Indiana, 1989)
U.S. v. Shell Oil Company
Civil Action No. C-89-4220-CAL
(N.D. California, 1989)
U.S. and the State of Michigan v. the City of Detroit. Michigan
Civil Action No. 89-72937-DT
(E.D. Michigan, 1989)
U.S. v. Tillamook County Creamery Association. Inc .
Civil Action No. 91-105-MA
(D. Oregon, 1991)

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U.S. v. Township of Maple Shade
Civil Action No. 89-669(CSF)
(D. New Jersey, 1989)
U.S. v. Village of Sauget. fllinois
Civil Action No. 88-5131
(S.D. illinois, 1988)
U.S. v. The Western Sugar Company
Civil Action No. 90-F-1560
(D. Colorado, 1990)
U.S. v. Wheeling-Pittsburgh Steel Corporation
(to be filed in 1991)
(W.D. Pennsylvania)

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Table of Contents

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Table of Contents
Clean Water Act P1eadin s and Discovery
VOLUME I
Municipa]JPOTW NPDES Permit Vi&ations
A. Complaints
1. City of Phoenix (including failure to implement
pretreatment program)
2. TownshiD of Maple Shade. New Jersey
3. City of Bartlesville. Oklahoma
4. Puerto Rico Administration of Corrections
5. City of Lvnnwood. Washington
B. U.S. First Request for Admissions, Interrogatories, and Request for
Documents: City of Gary
C. U.S. First Request for Admissions: City of Terre Haute
D. U.S. First Request for Production: City of Terre Haute; Puerto Rico
Administration of Corrections
E. U.S. First Set of Interrogatories: Puerto Rico Administration of
Corrections
F. Notice of Deposition: City of Gary
II. Industrial NPDES Permit Violations
A. Complaints:
1. Ashland Ethanol. Inc .
2. Wheeling-Pittsburgh Steel Corp .
3. Western Sugar Company
4. Caribe Tuna. Inc .
5. Tillamook County Creamery Association. Inc .
6. Promised Land Mining
B. U.S. First Set of Interrogatories: Ashland Ethanol. Inc.; Holly
Farms of Texas. Inc .
C. U.S. First Request for Production: Ashland Ethanol. Inc.; Koch
Refining Co.; Holly Farms of Texas. Inc .
D. U.S. Response to Defendant’s First Set of Interrogatories: F.B.
Purnell Sausage Co .

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E. U.S. Response to Defendant’s First Request for Production: Ashland
Ethanol. Inc .
F. U.S. Response to Defendant’s Seventh and Eighth Interrogatories
and Fifth Request for Production: Menominee Paper Company. Inc .
(Attempt to discover settlement position - deliberative process
privilege asserted)
G. U.S. First Request for Admissions, Fourth Set of Interrogatories,
and Fourth Request for Production: Ashland Ethanol. Inc .
H. U.S. First Request for Admissions and Defendant’s Response: F.B.
Pernell Sausage Co .
I. Defendant’s Response to U.S. Second Interrogatories: F.B. Purnell
Sausage Co .
III. UnDermitted Discharges
A. Complaints
1. City of Wildwood. Florida (No effective permit)
2. City of Neptune Beach. Florida (No effective permit)
3. Shell Oil Company (Oil spill)(State of California, numerous
state and local agencies as co-plaintiffs)
4. Gerbaz (Dredge and fill)
5. Inland Steel (Laboratory violations)
6. James River Paoer Comianv (Discharge in excess of
reportable quantities)
7. Construction Industries. Inc . (Wetlands, discharge
of fill materials)
B. U.S. First Set of Interrogatories Bayou Marcus Livestock (Dredge
and fill)
C. U.S. First Set of Interrogatories and Request for Production: Inland
Steel
VOLUME II
IV. Industrial Pretreatment Violations
A. Complaints
1. Roll Copter. Inc . (coil coating point source category)
2. CR Industries. Inc . (metal finishing point source category)
3. Digital Equipment Corporation (metal finishing point
source category)
4. Koooers ComDanv. Inc . (iron and steel manufacturing
point source category)

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B. Answer: CR Industries
C. U.S. First Set of Interrogatories: Roll Coater. Inc.; Empire Plating
(metal finishing)
D. U.S. First Request for Production: Roll Coater. Inc.; Empire Plating
; CR Industries
E. U.S. Second Set of Interrogatories: Roll Coater
F. U.S. Response to First Set of Interrogatories: Roll Coater
G. U.S. Response to Second Set of Interrogatories: Roll Coater
H. U.S. Response to First Set of Interrogatories, Request for
Admissions and Request for Production of Documents: KoDpers
Company. Inc .
V. MunicipalfPOTW Pretreatment Implementation Cases
A. Complaints
1. City of Detroit. Michigan
2. Haverstraw Joint Regional Sewerage Board. New York
3. Borough of Bellefonte. Pennsylvania
4. City of Berrvville. Arkansas (and Amended Complaint)
5. Brazos River Authority
B. U.S. First Set of Requests for Admission and Interrogatories: City of
Detroit
C. U.S. Response to First Set of Interrogatories and Request for
Production: City of Detroit
D. U.S. Response to First Request for Admissions and Second Set of
Interrogatories and Second Request for Production: City of Detroit
E. Defendant’s Respponse to U.S. First Set of Interrogatories: City of
Berrvville; Brazos River Authority
F. Defendant’s Response to U.S. First Request for Production: City of
Berrvville

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VI. Case Files
A. Eagle-Picher Industries. Inc . (unpermitted discharges, permit
violations, pretreatment violations (battery manufacturing
category))
1. Complaint
2. U.S. First Set of Interrogatories
3. U.S. First Request for Production of Documents
4. U.S. First Response to First Set of Interrogatories
B. Pennzoil Exploration and Production Co . (unpermitted discharges)
1. Complaint
2. U.S. Response to First Set of Interrogatories
3. U.S. Second Set of Interrogatories
4. U.S. Second Set of Requests for Production of Documents
5. Defendant’s Response to Second Set of Interrogatories
6. Defendant’s Response to Second Set of Requests for
Production of Documents
7. Defendant’s Second Request for Production of Documents
VOLUME ifi
C. Crown Cork de Puerto Rico (unpermitted discharges, permit
violations, pretreatment violations (can making facilities))
1. Complaint
2. Answer
3. Defendant’s Response to U.S. First Interrogatories, Request
for Production, and Requests for Admission
4. U.S. Supplemental Responses to First Interrogatories
5. U.S. Second Set of Interrogatories and Requests for
Production
6. Defendant’s Response to U.S. Second Set of
Interrogatories and Request for Production
7. U.S. Third Set of Interrogatories and Request for
Production, Defendant’s Response
D. Village of Sauget. flhinois (permit violations, failure to implement
pretreatment program)
1. Complaint
2. U.S. First Set of Interrogatories
3. Defendant’s Response to U.S. First Set of Interrogatories
4. U.S. First Request for Production of Documents and
Defendant’s Response
5. U.S. Second Set of Interrogatories

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6. Defendant’s Response to U.S. Second Set of
Interrogatories
7. Defendant’s Response to U.S. Second Request for
Production of Documents
8. Defendant’s Response to U.S. Third Set of Interrogatories
E. Quaker State Corporation (unpermitted discharges)
1. Complaint
2. Defendant’s Response to U.S. First Set of Interrogatories
3. U.S. Request for Admissions
4. Defendant’s Response to U.S. Request for Admissions
5. Defendant’s First Requests for Admissions and U.S.
Response
6. Defendant’s Response to U.S. Second Set of Interrogatories
7. U.S. Supplemental Responses to Defendant’s First
Interrogatorie 5
8. U.S. Response to Third Set of Interrogatories

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1 Municipal Pennits

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1.-A ComplaintB

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I.
RICHARD B. STEWART
1 Assistant Attorney General.
Land and Natural Resources Division
2 ROBERT R. HOMIAK
Environmental Enforcement Section
United States Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
5 (202)633—5485
STEPHEN M. McNAMEE
United States Attorney
District of Arizona
JAMES P. LOSS ‘a’?
Assistant u.s. Attorney
4000 U.S. Courthouse
230 North First Avenue
Phoenix, Arizona 85025
GAIL B. COOPER
Acting Regional Counsel
JESSICA KAO
Assistant Regional Counsel
U.S. Environmental Protection Agency/Region IX
215 Fremont Street
San Francisco, California 94105
I (415)974—7451
Attorneys for Plaintiff United States of America
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
CIVS9- 1b 6PHXC.
CIV. NO.
21
22 COMPLAINT
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FORM OBD.I$i
MAR I)
FILED
cCTO4fB! (2)
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UNITED
STATES OF AMERICA,
)
)
Plaintiff,
)
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v.
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THE
CITY
OF PHOENIX, ARIZONA
AND
THE
STATE OF ARIZONA
Defendants.
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The United States of America, through its undersigned
counsel, and at the request and on behalf of the Administrator of
2
the United States Environmental Protection Agency (“EPA’).
3
states:
4:
NATURE OF ACTION
1. This is a civil action brought pursuant to sections
6 h 309(b) and (d) of the Clean Water Act (the “Act’), 33 U.S.C.
§ 1319(b) and (d), for injunctive relief and assessment of civil
8 penalties against the City of Phoenix, Arizona, for its discharge
of pollutants in violation of section 301 of the Act, 33 U.S.C.
10 § 1311. The City of Phoenix has violated terms and conditions of
its National Pollutant Discharge Elimination System ( “NPDES’)
12 permits, issued pursuant to section 402 of the Act, 33 U.s.c.
13 I § 1342, including requirements to implement fully its
14 pretreatment program. This action also seeks appropriate relief
15 against the State of Arizona pursuant to section 309(e) of the
16 Act, 33 U.S.C. § 1319(e).
11 JURISDICTION AND VENUE
18 2. This Court has jurisdiction over the subject matter
19 of this action under 28 U.S.C. H 1345 and 1355, and section
20 309(b) of the Act, 33 U.S.C. § 1319(b). Notice of commencement
21 of this action has been given to the State of Arizona and is
22 further given by naming it as a defendant herein and serving this
23 complaint.
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3. Venue is proper in this District pursuant to 28
1 U•S•C• s 1391(b) and (C) and 1395(a), and section 309(b) of the
2 Act, 33 U.S.C. S 1319(b), because it is the judicial district in
3 which the City of Phoenix is located and in which the alleged
4 violations occurred.
5 PARTIES
6 I! 4. Plaintiff is the United States of America, acting at
7 the request and on behalf of the Administrator of EPA.
8 5. Defendant City of Phoenix is a “munIcipality” within
9 the meaning of section 502(4) of the Act, 33 U.S.C.
10 I § 1362(4).
11 6. The State of Arizona is joined as a defendant in
12 this action pursuant to section 309(e) of the Act, 33 U.S.C.
13 § 1319(e).
14 STATUTORY REQTJIREME 4TS
15 7. Section 301(a) of theAct, 33 U.S.C. § 1311(a),
16 prohibits the discharge of pollutants by any person except in
17 compliance with that section and, inter alia , sections 307 and
18 402 of the Act, 33 U.S.C. § 1317 and 1342.
19 8. SectiOn 307(b) of the Act, 33 U.S.C. §1317(b),
20 directs the Administrator of the EPA to publish regulations
21 establishing pretreatment standards governing the introduction of
22 pollutants into publicly owned treatment works ( “POTWs”) for
23 pollutants that are determined not to be susceptible to treatment
24 by such treatment works or that would interfere with the
25 operation of such treatment works.
26 -3-
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9. The Administrator of EPA promulgated “General
1 Pretreatment Regulations for Existing and New Sources of Water
2 Pollution”, 40 C.F.R. § 403, to assure implementation of the
pretreatment standards established under section 307(b) of the
Act, 33 U.S.C. § 1317(b).
10. Pursuant to section 402 of the Act, 33 U.S.C.
6 : § 1342, the Administrator of EPA may issue an NPDES permit which
7 authorizes the discharge of pollutants directly into navigable
8 waters of the United States, but only upon compliance with the
9 applicable requirements of section 301 of the Act, 33 U.S.C.
10 1311, and such other conditions as the Administrator determines
11 are necessary to carry out the provisions of the Act.
12 11. Section 309(b) of the Act, 33 U.S.C. § 1319(b),
13 authorizes the Administrator to commence a civil action for
14 1 appropriate relief, including a permanent or temporary
15 injunction, when any person is in violation of sections 301, 302,
16 306, 307, 308, 318, or 405 of the Act, 33 U.S.C. § 1311, 1312,
17 1316, 1317, 1318, 1328, or 1345, or is in violation of any
18 permit condition or limitation implementing any of such sections
19 in a permit issued under section 402 of the Act, 33 U.S.C.
20 § 1342.
21 12. Section 309(d) of the Act, 33 U.S.C. § 1319(d),
22 ‘J provides that any person who violates sections 301, 302, 306,
23 307, 308, 318, or 405 of the Act, 33 U.S.C. ç 1311, 1312, 1316,
24 1317, 1318, 1329, or 1345, or violates any permit condition or
25 limitation implementing any such sections in a permit issued
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under section 402 of the Act, 33 U.s.c. § 1342, or violates any
1 requirement imposed in a pretreatment program, or Violates any
2 order issued by the Administrator under section 309(a) of the
Act, 33 u.s.c. § 1319(a), shall be subject to a civil penalty not
to exceed $10,000 per day for each violation occurring before
5 February 4, 1987, and $25,000 per day for each such violation
6 Occurring thereafter.
GENERAL ALLEGATIONS
8 13. Phoenix owns and operates the Phoenix 23rd Avenue
Wastewater Treatment Plant (“23rd Avenue WWTP”), located at 2301
10 West Durango St., Phoenix, Arizona, The 23rd Avenue WWTP
11 receives and treats wastewater from residential, commercial and
12 industrial sources, and discharges wastewaters into the Salt
13 River.
14 14. Phoenix “discharges pollutants Within the meaning
15 of sections 502(6) and (12) of the Act, 33 U.S.c. § 1362(6) and
16 (12), from the 23rd Avenue WWTP through a “point source within
17 the meaning of section 502(14) of the Act, 33 U.s.a. § 1362(14),
18 into the Salt River, which is a “navigable water withj the
19 meaning of section 502(7) of the Act, 33 U.S.C. § 1362(7), and 40
20 C.F.R. § 122.2.
21 15. Pursuant to section 402(a) of the Act, 33 U.S.C.
22 § 1342(a), EPA issued to Phoenix NPDES permit number AZ0020559,
23 which became effective on October 30, 1980, and issued
24 modifications to NPDES permit number AZ0020559, Which became
25 effective on February 25, 1984, and July 11, 1984.
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16. On September 30, 1988, EPA reissued NPDES permit
1 number AZ0020559. Phoenix has challenged the reissued permit
2 under 40 C.F.R. § 124.71 t sea . By operation of 40 C.F.R.
§ 122.6, the reissued permit has not become effective.
17. NPDES permit number AZ0020559 authorized and
continues to authorize Phoenix to discharge pollutants from the
6 23rd Avenue WWTP into the Salt River, subject to limitations and
coi)djtjons. NPDES permit number AZ0020559 establishes
8 limitations on the amounts of copper, cadmium, and other
characteristics of the effluent that Phoenix can discharge from
the 23rd Avenue WWTP.
11 ‘ 18. NPDES permit number AZ0020559 also prescribes
12 certain monitoring, reporting and operation requjreme 5
13 j 19. Phoenix also owns and operates the Phoenix 91st
14 I Avenue Wastewater Treatment Plant (“91st Avenue WWTP), located
15 Ij at 91st Avenue and Southern Avenue Phoenix, Arizona. The 91st
16 Avenue WWTP receives and treats wastewater from residential,
17 commercial and industrial sources, and discharges wastewaters
18 into the Salt River.
19 20. Phoenix ‘discharges Pollutants’ Withinthe meaning
20 of sections 502(6) and (12) of the Act, 33 U.S.C. § 1326(6) and
21 (12), from the 91st Avenue WWTP through a “point Source’ within
22 the meaning of section 502(14) of the Act, 33 U.S.C. § 1362(14),
23 j into the Salt River, which is a ‘navigable water’ within the
24 meaning of section 502(7) of the Act, 33 U.S.C. § 1362(7), and 40
25 C.F.R. § 122.2.
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21. Pursuant to section 402(a) of the Act, 33 U.S.C.
1 § 1342(a), EPA issued to Phoenix NPDES permit number AZ0020524,
which became effective on October 30, 1980, and issued
modifications to NPDES permit number A20020524, which became
effective on February 25, 1984, and July 11, 1984.
22. On September 30, 1988 EPA reissued NPDES permit
6 number AZ0020524. Phoenix has challenged the reissued permit
under 40 C.F.R. § 124.71 t sea By operation of 40 C.F.R.
8 § 122.6, the reissued permit has not become effective.
23. NPDES permit number AZ0020524 authorized and
10 continues to authorize Phoenix to discharge pollutants from the
91st Avenue WWTP into the Salt River, subject to certain
12 limitations and conditions. NPDES permit number AZ0020524
13 establishes limitations on the amounts of copper, cadmium, and
14 I other characteristics of the effluent that Phoenix can discharge
15 from the 91st Avenue WWTP.
16 24. NPDES permit number AZ0020524 also prescribes
17 certain monitoring, reporting and operational requireme •
18 I 25. As required by 40 C.F.R. § 403.8, Phoenix developed
19 a Pretreatment Program to control pollutants contained in the
20 wastewater of the non-domestic users of the 23rd Avenue WWTP and
21 of the 91st Avenue WWTp.
22 26. In July 1983, EPA approved Phoenix’s Pretreatment
23 Program in accordance with 40 C.F.R. § 403.11.
24 27. Effective February 25, 1984, EPA modified NPDES
25 permit number AZ0020524 to incorporate by reference the approved•
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Pretreatment Program as a term and Cofldjtj of permit number
AZ0020524. Effective February 25, 1984, EPA modified NPDES
permit number AZ0020559 to incorporate by reference the approved
Pretreatment Program as a term and Condition of permit number
AZ0020559. Each permit expressly requires Phoenix to implement
its Pretreatment Program.
6 FIRST CLAIM FOR REL
28. Paragraphs i through 27 are realleged and
8 incorporated herein by reference.
I 29. Phoenix has failed to implement its Pretreatment
10 Program in violation of NPDES permit numbers AZ0020524 and
11 AZ0020559 and in violation of requirements set forth at 40 C.F.R.
12 § 403.8. Phoenix’s pretreatment implementation violations
13 include, but are not limited to, the following:
14 a. Failure to develop agreements with all “contributing
cities (as defined in the Pretreatment Program) that
15 either give Phoenix authority to enforce pretreatment
requirements against “industrial users within the
16 contributing cities’ jurisdiction, or require the
I contributing cities to implement fully the Pretreatment
17 Program against those industrial users;
18 b. Failure to determine if new industrial users Should be
regulated under Phoenix’s pretreatment program;
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c. Failure to inspect and monitor “significa industrial
20 users;
21 d. Failure to notify industrial users of requireme under
subtitles C and D of the Resource Conservation and
22 Recovery Act;
23 e. Failure to submit an adequate annual report of its
pretreath t program;
24
f. Failure to respond to instances of industrial user
25 noncompliance with applicable pretreatment standards and
requirements;
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g. Failure to undertake effective enforcement against
1 violating industrial users; and
2 h. Failure to publish, annually, in the City’s largest daily
newspaper, a list of those industrial users which, during
3 the previous 12 months, were significantly violating
applicable Pretreatment Standards and Requirements
30. Phoenix’s failure to implement fully its
Pretreatment Program pursuant to condition II.A.9. of NPDES
6 permit number AZ0020559 is a violation of a permit condition or
11 limitation implementing sections 301, 307, and 308 of the Act, 33
8 U .S.c. § 1311, 1317, and 1318, in a permit issued pursuant to
section 402 of the Act, 33 U.s.c. § 1342. Phoenix’s failure to
10 implement fully its Pretreatment Program pursuant to COndjtjo
II.A.9. of NPDES permit number AZ002 0524 is a violation of a
12 permit condition or limitation implementing sections 301, 307,
13 and 308 of the Act, 33 U.S.C. § 1311, 1317, and 1318, in a
14 permit issued pursuant to section 402 of the Act, 33 U.S.C.
15 § 1342.
16 31. Pursuant to sections 309(b) and (d) of the Act, 33
17 U.S.C. § 1319(b) and (d), Phoenix is subject to injunctive
18 relief and is liable for civil penalties for each day of each
19 violation alleged in this claim.
20 32. Unless restrained by order of the Court, Phoenix
21 will continue to violate sections 301 and 402 of the Act, 33
22 U.S.c. § 1311 and 1342.
23 SECOND CLAIM FOR RELI g
24 33. Paragraphs i through 32 are realleged and
25 inCorporated herein by reference.
26
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FORM 0 10. 113
MAR 13

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34. Phoenix has discharged Pollutants into the Salt
1 River in excess of the effluent limitatjor.s in its Permit. Based
2 on the information reported by Phoenix in its Discharge
Monitoring Reports (DMRs), Phoenix has exceeded the effluent
limits in its permits for such pollutants as copper and cadmium.
A table of effluent violations IS attached as Exhibit A. Based
6 on analyses performed by EPA in July 1987, Phoenix has discharged
effluent in violation of water quality criteria established by
8 i the State of Arizona related to toxicity.
9 I 35. Each of Phoenix’s discharges of pollutants in excess
10 of levels authorized by its Permit is a separate violation of a
permit Condition or limitation implementing Section 301 of the
12 Act, 33 U.S.c. § 1311, in a permit issued pursuant to seCtion 402
13 of the Act, 33 U.S.C. § 1342.
14 36. Pursuant to sections 309(b) and (d) of the Act, 33
15 u.s.c. § 1319(b) and Cd), Phoenix is subject to injunctive relief
16 I and is liable for civil penalties.
17 37. Unless restrained by order of the Court, Phoenix
18 will continue to violate sections 301 and 402 of the Act, 33
19 U.S.c. § 1311 and 1342.
20 THIRD CLAIM FOR RELI
21 38. Paragraphs i through 37 are reafleged and
22 incorporated herein by reference.
23 39. Pursuant to section 309(e) of the Act, 33 U.s.C.
24 § 1319(e), the State of Arizona is liable for payment of any
25 judgment, or any expenses incurred as a result of complying with
26
— 10 —
FORM OSD.113 I
MAR 13

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any judgment, entered against Phoenix to the extent that its laws
prevent Phoenix from raising revenues needed to comply with such
2
judgment.
3
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, United States of America, prays
that the Court:
6 :
1. Permanently enjoin Phoenix from discharging
pollutants except as expressly authorized by the Act and
8 Phoenix’s NPDES permits;
2. Order Phoenix to comply with all terms and
10 Conditions of NPDES permit number AZ0020559, NPDES permit number
11 I! AZ0020524, and the Act;
12 3. Pursuant to section 309(d) of the Act, 33 U.S.C.
13 § 1319(d), assess civil penalties against Phoenix not to exceed
14 $10,000 per day for each violation prior to February 4, 1987, and
15 $25,000 per day for each Violation since February 4, 1987 up to
16 the date of judgment herein, of sections 301 and 402 of the Act,
17 U.S.C. fl 1311 and 1342, and of its NPDES permit;
18 4. Award relief against the State of Arizona pursuant
19 to section 309(e) of the Act, 33 U.S.c. § 1319(e);
20 5. Award the United States its costs and disbursements
21 in this action; and
22 6. Grant the United States such other relief as this
23 Court deems appropriate.
24
25
26
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I:
FORM OBD.II3
MAR 13

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Respectfully submitted,
1
2 / L d / 1Jk v fr-
3 RICHARD B. STEWART
Assistant Attorney General
4 Land and Natural Resources Division
United States Department of Justice
5 Washington, D.C. 20503
6 Ii
STEPHEN H. MCNAMEE
I United States Attorney
I District c- rizona
By: ________________
I JAME p. LOSS
10 sistant United States Attorney
District of Arizona
13 ROBERT R. HOMIAI(
Senior Attorney
14 Environmental Enforcement Section
Land and Natural Resources DjVjsjo
15 United States Department of Justice
P.O. Box /611
16 Benjamin Franklin Station
Washington, D.C. 20044
17 (202)633—5485
18
OF COUNSEL:
19
Jessica Kao
20 Assistant Regional Counsel
U.S. Environmental Protection
21 Agency — Region xx
215 Fren ont Street
fl San Francisco, c& 94105
23 Gary Hess
Office of Enforcement and Compliance
24 Monitoring
U.S. Environmental Protection Agency
25 401 N Street, SW
Washington, D.C. 20460
26
— 12 —
FORM OSD- 1 13
M4R 13

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-
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY — fl
)
UNITED STATES OF AMERICA, ) JUN 2 1 1989
Plaintiff,
V. ) Civil Action No.
THE TOWNSHIP OF MAPLE SHADE,
NEW JERSEY, and THE STATE OF
NEW JERSEY,
)
Defends ,ts.
)
COMPLAINT
The United States of America, at the request and on
behalf of the Administrator of the United States Environmental
Protection Agency (‘EPA’), alleges the following:
NATURE OF ACTION
1. This is a civil action pursuant to section 309(b)
and (d) of the Clean Water Act (‘the Act’), 33 U.S.C. § 1319(b),
(d), for injunctive relief and the assessment of civil penalties
against the Township of Maple Shade for it discharges of
pollutants in violation of ssction 301 of the Act, 33 U.s.c.
5 1311, and for it. violations of certain terms, conditions, and
limitations of National Pollutant Discharge Elimination System
(‘NPDES’) psrmits issued to the Township of Maple Shade by EPA
and th. State of New Jersey Department of Envirorimsntal
Protection (‘N3DEP’) pursuant to section 402 of the Act, 33
U.S.C. 5 1342. The action also seeks r.lJ.f against the State of
New Jersey pursuant to section 309(e) of the Act, 33 U.S.C.
5 1319(e).

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—2—
JIJRISDICTIOU AND VENUE
2. This Court has jurisdjc j over the subject matter
of this action and the parties pursuant to section 309(b) of the
Act, 33 U.S.C. § 1319(b), and 28 U.S.c. § 1331, 1345 and 1355.
Notice of the commencement of this action has been given to the
State of New Jersey in accordance with section 309(b) of the Act,
33 U.S.C. § 1319(b).
3. Venue is proper in this judicial district under
section 309(b) of the Act, 33 U.S.C. § 1319(b), and 28 U.S.c.
§ 1391(b), because this is the district in which the Township of
Maple Shade is located and in which the alleged violations
occurred.
DEFENDANTS
4. Defendant the Township of Maple Shade (‘Maple
Shade’ or the ‘Township’) is a political subdivision of the State
of New Jersey and is a ‘mUnicipality’ and a ‘person’ within the
meaning of section 502(4) and (5) of the Act, 33 U.S.C. S 1362(4)
and (5).
5. Defendant State of New Jersey (the ‘State’) is a
party to this action pursuant to section 309(e) of the Act, 33
U.S.C. • 1319(s), under which the State is liable for the payment
of any judgment entered against Maple Shade in this action, or
for the expense of complying with any such judgment, to the
extent that the laws of the Stats prevent Maple Shade from
raising revenues needed to comply with such judgment.

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G NER.AL ALLEGATIpN
6. Maple Shade owned and operated at all relevant
times, and continues to own and operate, two facilities that
collect and treat wastewater from residential, com ercja1 and
industrial sources located within the Township. Each of these
facilities is a publicly owned treatment works (‘POTw’) as
defined in 40 C.F.R. § 122.2. One facility (‘POTW No. 1’) is
located on Linwood Avenue in the Township of Maple Shade,
Burlington County, New Jersey. The other facility (‘POTW No. 2”)
is located on Main Street in the Township of Maple Shade,
Burlington County, New Jersey.
7. POTW No. 1 discharged at all relevant times, and
continues to discharge, wastewater and other pollutants’ within
the meaning of section 502(6) of the Act, 33 U.S.C. § 1362(6),
into the South Branch of Panneauken Creek from a ‘point source’
within the meaning of section 502(14) of the Act, 33 U.S.C.
§ 1362(14). The South Branch of Penneauken Creek i. a ‘navigable
water’ within the meaning of section 502(7) of the Act, 33 U.S.c.
4 1362(7). These discharges into the South Branch of Pennsauken
Creek from POTW No. 1 are ‘discharges of pollutants’ within the
meaning of sections 301(a) and 502(12) of the Act, 33 U.S.C.
48 1311(a) and 1362(12).
8. P01W No. 2 discharged at all r.1.vant times, and
continue, to discharge, wastewater and other ‘pollutants’ within
the meaning of section 502(6) of the Act, 33 U.S.C. I 1362(6),

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into the North Branch of Pennsauken Creek from a “point source
within the meaning of section 502(14) of the Act, 33 U.S.C.
§ 1362(14). The North Branch of Pennsauken Creek is a “navigable
water” within the meaning of section 502(7) of the Act, 33 U.s.c.
§ 1362(7). These discharges into the North Branch of Pennsauken
Creek from POTW No. 2 are “discharges of pollutants” within the
meaning of sections 301(a) and 502(12) of the Act, 33 U.S.C.
§5 1311(a) and 1362(12).
9. Section 301(a) of the Act, 33 U.S.C. 5 1311(a),
prohibits the discharge of any pollutant except in compliance
with the requirements of that section and as authorized by and
in compliance with a NPDES permit issued pursuant to the permit
issuing authority contained in section 402 of the Act, 33 U.S.C.
§ 1342.
10. Under section 402(a) of the Act, 33 U.s.c.
5 1342(a), the Administrator of EPA (‘Administrator”) may issue a
NPDES permit that authorizes the discharg. of pollutants directly
into navigable waters of the United States, but only upon
compliance by the permit-holder with the applicable requirements
of section 301 of the Act, 33 U.S.C. 5 1311, and such other
conditions as the Administrator determines are necessary to carry
out the provisions of the Act. Under section 402(b) of the Act,
33 U.S.C. • 1342(b), the Administrator may delegate to a state
the authority to administer the NPDES program for discharges into
navigable waters within the stats’s jurisdiction.
11. Pursuant to section 402(a) of the Act, 33 U.s.c

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§ 1342(a), EPA issued NPDES Permit No. NJ0028738 (‘1978 Permit
for po’rw No. 1’) to the Township, which permit became effective
on December 30, 1978. The 1978 Permit for POTW No. 1 author .zed
the Township to discharge pollutants from POTW Mo. 1 subject to
certain effluent limitations and other conditions. A copy of the
1978 Permit for POTW No. 1 is attached to this Complaint as
Exhibit A.
12. Pursuant to section 402(a) of the Act, 33 U.s.c.
Section 1342(a), EPA issued NPDES Permit No. 030028746 (‘the 1978
Permit for POTW No. 2’) to the Township, which permit became
effective on December 30, 1978. The 1978 Permit for POTW No. 2
authorized the Township to discharge pollutants from POTW No. 2,
subject to certain effluent limitations and other conditions. A
copy of the 1978 Permit for POTW No. 2 is attached to thjs
Complaint as Exhibit B.
13. On April 12, 1982, pursuant to section 402(b) of
the Act, 33 U.S.C. § 1342(b), the EPA Administrator delegated to
the Stat, of New Jersey th. administration of the NPDES permit
program for discharge. into navigabi. waters within the State’ s
jurisdiction. On July 1, 1983, the Township filed applications
with )WDEP to renew the 1978 Permit, for P01W . No. 1 and No. 2.
By Operation of 5 u.s.c. 558(c) and 40 C.F.R. 1 122.6, as well
as N.J.A.C. 7:14A—2.1(f) (5) and 2.3, the 1978 Permit, for POTWs
No. 1 and No. 2 remained in effect until 0ev Jersey took final
administrativ, action on the permit applications submitted by the
Township. The 1978 P.rmits for P01W . No. 1 and No. 2 remained

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federally enforceable under section 309(b) of the Act, 33 U.s.c.
§ 1319(b), until replaced or revoked.
14. On June 25, 1985, NJDEP issued a renewed NPDES
permit, No. NJ0028738 to the Township, authorizing the discharge
of pollutants from POTW No. 1 subject to certain effluent
limitations and other conditions (“1985 Permit for POTW No. 1”).
The 1985 Permit for POTW No. 1 is effective from August 1, 1985
to July 31, 1990 and replaced the 1978 Permit for POTW No. 1.
The 1985 Permit for POTW No. 1 is federally enforceable under
section 309(b) of the Act, 33 U.S.C. 1319(b). A copy of the
1985 Permit for POTW No. 2. is attached to this Complaint as
Exhibit C.
15. On Juns 25, 1985, NJDEP issued a renewed NPDES
permit, No. NJ0028746, to the Township, authorizing the
discharge of pollutants from POTW No. 2 subject to certain
affluent limitations and other conditions (“1985 Permit for POTW
No. 2”). The 1985 Permit for POTW No. 2 is eff.ctiv. from August
1, 1985 to July 31, 1990 and replaced the 1978 Permit for POTW
No. 2. The 1985 Permit for POTW No. 2 is federally enforc.able
under section 309(b) of the Act, 33 U.S.C. 4 1319(b). A copy of
the 1985 Permit for POTW No. 2 ii attached to this Complaint as
Exhibit 0.
16. Section 309(a)(3), (b) and (d) of the Act, 33
U.S.C. 4 1319(a)(3), (b), and (d) authorizes the Administrator
of EPA to commence a civil action for injunctive relief and for
civil penalties for each violation of section 301 of the Act, 33

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U.S.C. § 1311, or of any permit Condition or limitation
implementing, inter qua , section 301 of the Act and contained u
a permit issued under section 402 of the Act, 33 U.S.c. § 1342.
FIRST CLAIM FOR RELIEF: VIOLATIONS OF EFFLUENT
LIMITATIONS FOR POTW NO. 1
17. Paragraphs 1-16 are realleged and incorporated
herein.
18. Condition B.1.A. of the 1978 Permit for POTW No. 1
required that the discharges from POTW No. 1 meet effluent
limitations based on secondary treatment pursuant to section
301(b) (1) (B) of the Act, 33 U.S.C. § 1311(b) (1) (3), and more
stringent effluent limitations necessary to meet state law
requirements pursuant to section 301(b) (1) (C) of the Act, 33
U.S.C. l3ll(b)(l)(c).
19. Conditions 3.1.5. and C.II. of the 1978 Permit for
POTW No. 1 provided a conditional deferral of Maple Shade’s
obligation to meet the secondary treatment and more stringent
effluent limitation. imposed under Condition B.1.A. of the 1978
Permit for POTW No. 1 (“final limits”). By the term, of the 1978
Permit for POTW No. 1, this deferral of final limits was in
effect from the effective date of the 1978 Permit for POTW No. 1,
December 30, 1978, until the Township completed the upgrade of
PO’lll No. 1 to meet the final limits or until July 1, 1983,
whichever came first. While the final limit, deferral was in
effect, the Township was authorized to discharge in accordance
with interim effluent limitations established by Condition B.1.B.
of the 1978 Prmit for P01W No. 1. Th• 1978 Permit for P01W No.

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1 expressly conditioned the final limits deferral upon the
TOwnship’s compliance with the schedule for upgrading POTW No. 1
(“1978 compliance schedule ’) set forth in Condjtjo C.II. of the
1978 Per-mit for POTW No. 1.
20. As of July 1, 1983, the Township had failed to
comply with the 1978 compliance schedule for POTW No. 1. On or
before July 1, 1983, the secondary treatment and more stringent
effluent limitations established by Condition B.l.A. of the 1978
Permit for POTW No. 1 became effective by the terms of the
permit. Those effluent limitations remained in effect until
August 1, 1985, when the 1985 Permit for PO?W No. 1 became
effective.
21. At numerous times during the period from July 1,
1983 until August 1, 1985, the Township discharged pollutants
from POTW No. 1 into the South Branch of Pennsauken Creek in
excess of the effluent limitations established by Condition
B.1.A. of the 1978 Permit for POTW No. 1.
22. Condition I.A.1.j. of the 1985 Permit for POTW No.
1 required that the discharges from POTW No. 1 meet •ffluent
limitations mor. stringent than secondary treatment, a.
necessary to meet stats law requirements pursuant to section
30l(b)(1)(c) of ths Act, 33 U.S.C. 1311(b)(l)(c).
23. Conditions I.A.1.jj. and I.D.1 of the 1985 Permit
for POTW No. 1 provided a conditional deferral of Naple Shade’s
obligation to meet the effluent limitations imposed under
Condition I.A.1.i. of the 1985 Permit for PO W No. 1 (“final

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limits’). By th. terms of the 1985 Permit for PO ’XI( No. 1, this
deferral of final limit was in effect from th. •ffectjve date of
the 1985 Permit for POTW No. 1, August 1, 1985, until the
Township upgraded POTW No. 1 to meet the final limits, or usitil
June 30, 1988, whichever came first. While the final limits
deferral was in effect, the Township was authorized to discharge
in accordance with the interim effluent limitations imposed
pursuant to Condition I.A.1.ii. of the 1985 Permit for POTW No.
1, which were less stringent than the final limits. The final
limits deferral in the 1985 Permit for POTW No. 1 was conditioned
upon th. Township’s complianc, with the schedul. for upgrading
POTW No. 1 (‘1985 complianc. schedule’) set forth in Condition
t.D.l. of th. 1985 Permit for POTW No. 1.
24. At numerous times during the period August 1,
1985 through Jun. 1988, the Township discharged pollutants from
POTW No. 1 to the South Branch of the Psnnsauk.n Creek in excess
of the int.rim sf fluent limitations impos.d by Condition
I.A.1.ij. of the 1985 Permit for POTW No. 1.
25. As of June 30, 1986, the Township vas out of
complianc, with the 1985 compliance schedule for P01W No 1. On
or before June 30, 1986, and in any event no later than July 1,
1988, the final limits imposed by Condition I.A.l.i. of th. 1985
Prmit for P01W No. 1 became effective.
26. At numerous times from June 30, 1986 to the
present, the Township has discharged pollutants from P0111 No. 1
to the South Branch of Pennsauken Cr..k in excess of the final

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limits imposed by Condition I.A.1.i. of the 1985 Permit for Po’rw
No. 1.
27. The discharges described in Paragraphs 21, 24, and
26 above violated section 301 of the Act, 33 U.S.C. 1311, and
the conditions of the Township’s permits implementing section
301 of the Act.
28. Pursuant to sections 301 and 309 of the Act, 33
U.S.C. 1311 and 1319, the violations described in Paragraphs
21, 24, 26 and 27 above render the Township liable for the
imposition of injunctive relief and civil penalties not to exceed
ten thousand dollars ($10,000) per day of such violation before
February 4. 1987, and not to exceed twenty-five thousand dollars
($25,000) per day for each violation on or after February 4,
1987. On information and belief, the Township will contknue to
discharge pollutants from POTW No. 1 in violation of section 301
of the Act, 33 U.S.C. I 1311. and the conditions and limitations
of the 1985 Permit for POTW No. 1 unless enjoined by an Order of
this Court.
SECOND CIAIX FOR RELIEF: VIOLATIONS OF
29. Paragraph.s 1-16 are realleged and incorporated
herein.
30. Condition B.1.A. of the 1978 Permit for POTW No. 2
required that the discharges from P0111 No. 2 meet effluent
limitations based on secondary treatment pursuant to section
301(b) (1) (8) of the Act, 33 U.S.C. 1311(b) (1) (1), and more
stringent effluent limitations necessary to meet state law

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requirements pursuant to section 301(b) (1) (C) of the Act, 33
U.S.C. § 1311(b) (1) (C).
31. Conditions B.1.B. and C.II. of the 1978 Permit for
POTW No. 2 provided a conditional deferral of Maple Shade’s
obligation to meet the secondary treatment and more stringent
effluent limitations imposed under Condition B.l.A. of the 1978
Permit for POTW No. 2 (‘final limits’). By the terms of the 1978
Permit for POTW No. 2, this deferral of final limits was in
effect from the effective date of the 1978 Permit for POTW No. 2,
December 30, 1978, until the Township completed the upgrade of
POTW No. 2 to meet the final limits or until July 1, 1983,
whichever came first. While the final limits deferral was in
effect, the Township was authorized to discharge in accordance
with interim effluent limitations established by Conditidn 8.1.8.
of the 1978 Permit for POTW No. 2. The 1978 Permit for POTW No.
2 expressly conditioned the final limits deferral upon the
Township’s compliance with the schedule for upgrading POTW No. 2
(‘1978 compliance schedule’) set forth in Condition C.II. of the
1978 Permit for P01W No. 2.
32. As of July 1, 1983, the Township had failed to
comply vith the 1978 compliance schedule for P01W No. 2. On or
before July 1, 1983, the secondary treatment and more stringent
effluent limitations established by Condition B.1.A. of the 1978
Permit for N No. 2 bcame effective by the terms of the
permit. Those effluent limitations remained in effect until

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August 1, 1985, when the 1985 Permit for POTW No. 2 became
effective.
33. At numerous times during the period from July 1,
1983 until August 1, 1985, the Township discharged pollutants
from POTW No. 2 into the North Branch of Pennsauken Creek in
excess of the effluent limitations established by Condition
B.l.A. of the ‘978 Permit for POTW No. 2.
34. Condition I.A.1.i. of the 1985 Permit for POTW No.
2 required that the discharges from POTW No. 2 meet effluent
limitations more stringent than secondary treatment, as
necessary to meet state law requirements pursuant to section
301(b)(1)(c) of the Act, 33 U.S.C. 1311(b)(].)(c)i.
35. Conditions I.A.1.ii. and I.D.l. of the 1985 Permit
for POTW No. 2 provided a conditional deferral of Maple Shade’s
obligation to meet the effluent limitations imposed under
Condition I.A.l.j. of the 1985 Permit for POTW No. 2 (‘final
limits’). By the terms of the 1985 Permit for POTW No. 2, this
deferral of final limits was in effect from the effective date of
the 1985 Permit for POTW No. 2, August 1, 1985, until the
Township upgradd POTW No. 2 to meet the final limits, or until
June 30, 1988, whichever came first. While th. final limits
deferral was in effect, the Township was authorized to discharge
in accordance with the interim effluent limitations imposed
pursuant to Condition I.A.1.ii. of the 1985 Permit for POTW No.
2, which were less stringent than the final limits. The final
limits deferral in the 1985 Permit for rW No. 2 was

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conditioned upon the Township’s compliance with the schedule for
upgrading POTW No. 2 (“1985 compliance schedule) set forth in
Condition I.D.1. of the 1985 Permit for POTW No. 2.
36. At numerous times during the period August L,
1985 through June 1988, the Township discharged pollutants from
POTW No. 2 to the North Branch of the Penngauken Creek in excess
of the interim effluent limitations imposed by Condition
I.A.l.jj. of the 1985 Permit for POTW No. 2.
37. As of June 30, 1986, the Township was out of
compliance with the 1985 compliance schedule for POTW No. 2. On
or before June 30, 1986, and in any event no later than July 1,
1988, the final limits imposed by Condition I.A.1.i. of the 1985
Permit for POTW No. 2 became effective.
38. At numerous times from June 1, 1986 to the
present, the Township has discharged pollutants from POTW No. 2
to the North Branch of Penngaujc ,n Creek in excess of the final
limits imposed by Condition I.A.1.j. of the 1985 Permit for POTW
No. 2.
39. Th• discharge . described in Paragraphs 33, 36,
and 38 above violated section 301 of the Act, 33 U.S.C. 1311,
and the conditions of the Township’s permits implementing
section 301 of the Act.
40. Pursuant to sections 301 and 309 of the Act, 33
U.S.C. 1311 and 1319, the violations described in Paragraphs
33, 36, 38 and 39 above render the Township liable for the
imposition of injunctiv, relief and civil penalties not to exceed

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ten thousand dollars (Sl0,00oj per day of such violation before
February 4, 1987, and not to exceed twenty-five thousand dollars
($25,000) per day for each violation on or after February 4,
1987. On information and belief, the Township will continue to
discharge pollutants from POTW No. 2 in violation of section 30].
of the Act, 33 U.S.C. § 1311, and the conditions and limitations
of the 1985 Permit for T’OTW No. 2 unless enjoined by an Order of
this Court.
THIRD CL IM FOR RELIEF: FAILURE TO ADHERE
TO COMPLIANCE SCHEDULE FOR P01W NO. 1
41. Paragraphs 1-16 are realleged and incorporated
herein.
42. Under Condition I.D.l of the 1985 Permit for POTW
No. 1, which implements section 301 of the Act, 33 U.s.c.. § 1311,
the Township must achieve compliance with the effluent
limitations specified in Condition I.A.l.i. (including Table I)
of the 1985 Permit for POTW Mo. 1 in accordance with a compliance
schedule which includes ths folloving actions:
Comi 1iartc. Action D e Date
Begin Construction Juns 30, 1986
Complets construction and be capable of
meeting the required effluent limitation.
in Table I June 30, 1988
43. The Township failed to begin construction
necessary to comply with the effluent limitations specified in
Condition I.A.l.i. (including Table I) on or before June 30,
1986, and therefore violated Condition I.D.l.d. of the 1985
Permit for POTW No. 1. The Township failed to complete

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construction necessary to comply with the effluent limitations
specified in Condition I.A.1.i. (including Table I) by June 30,
1988, and therefore violated Condition I.D.1.e. of the 1985
Permit for POTW No. 1.
44. The omissions and violations described in
Paragraph 43 above Violated section 301 of the Act, 33 U.S.c.
§ 1311, and Conditions of the 1985 Permit for POTW No. 1
implementing section 301 of the Act.
45. Pursuant to sections 301 and 309 of the Act, 33
U.S.C. fi 1311 and 1319, the violations described in Paragraph
43 and 44 above render the Township liable for the imposition of
injunctive relief and civil penalties not to exceed ten thousand
dollars ($10,000) per day of such violation before February 4,
1987, and not to exceed twenty-five thousand dollars ($25,000)
per day for each violation on or after February 4, 1987. On
information and belief, the Township will continue to violate
section 301 of the Act, 33 U.S.C. § 1311, and the conditions and
limitation, of the 1985 Permit for POTW No. 1, by failing to
construct the required facilities, unless enjoined by an Order of
this Court.
FOUkTh CLAIM FOR RELIEF: FAX ZAiRE TO ADHERE
TO COMPLIANCE SCHEDULE FOR POTW NO. 2
46. Paragraphs i through 16 are realleged and
incorporated herein.
47. Under Condition I.D.1 of the 1985 Permit for POTW
No. 2,vhich iapl. ents section 301 of the Act, 33 U.S.C. 1311,
the Township must achieve compliance with the effluent

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limitations specified in Condition I.A.1.i. (including Table I)
of the 1985 Permit for POTW No. 2 in accordance with a
compliance schedule which includes the following actions:
CornDlipnce Action Due Date
Begin Construction June 30, 1986
Complete construction and be capable of
meeting the required effluent limitations
in Table I June 30, 1988
48. The Township failed to begin construction
necessary to comply with the effluent limitations Specified in
Condition I.A.1.j. (including Table I) by June 30, 1986, and
therefore violated Condition I.D.1.d. of the 1985 Permit for POTW
No. 2. The Township failed to complete construction necessary to
comply with the effluent limitations specified in Condition
I.A.1.i. (including Table I) by June 30, 1988, and therefore
violated Condition I.D.l.e. of the 1985 Permit for POTW No. 2.
49. The omissions and violations described in
Paragraph 48 above violate section 301. of the Act, 33 U.S.c.
S 1311, and conditions of the 1985 Permit for POTW No. 2
implementing section 301 of the Act, 33 U.S.C. 5 1311.
50. Pursuant to sections 301 and 309 of the Act, 33
U.S.C. 55 1311 and 1319, the violations described in Paragraphs
48 and 49 above rsnder the Township liable for th. imposition of
injunctive r.li.f and civil psnalties not to exceed ten thousand
dollars ($10,000) p.r day of such violation bsfors February 4,
1987, and not to exceed twenty-five thousand dollars ($25,000)
per day for each violation on or after February 4, 1987. On

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information and belief, the Township will continue to violate
section 301 of the Act, 33 U.S.C. S 1311, and the Conditions and
limitations of the 1985 permit for POTW No. 2, by failing to
construct the required facilities, unless enjoined by an Order of
this Court.
FIF M CLAIM FOR RELIEF: FAILURE
TO MAINTAIN POTW NO. 1 PROPERLy
51. Paragraphs i through 16 are reallbged and
incorporated herein.
52. Condition I.A.5. of the 1985 Permit for POTW No.
1, implementing section 301 of the Act, 33 U.S.C. 1311,
requires the Township to maintain POTW No. 1 in good working
order and to operate it as st ficiantly as possible.
53. At numerous times from August 1, 1985 to the
present, the Township has failed to maintain POTW No. 1 in good
working order and has failed to operat. it as efficiently as
possible. At various tiass from August 1, 1985 to the present,
the following conditions existed at POTW tie. 1: inoperable
trickling tiltsrs; leaking and ponding trickling filtsrs;
overloaded clarifj.r w.irs; and inop.rabl. chlorinator,. For
example, on November 24, 1987, the following operation and
maintenance deficiencies, among others, were observed:
a. th. trickling filter was not functioning;
b. the chlorinator was not functioning;
c. the clarifier weirs vsrs ovarloaded; and
d. the chlorine contact tank was cracked.

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54. The operation and maintenance deficiencies
described in Paragraph 53 above constitute violations of section
30]. of the Act, 33 U.S.C. § 1311, and Condition I.A.5. of the
1985 Permit for POTW No. 1 implementing section 301 of the Act,
for which the Township is liable for the imposition of injunctive
relief and civil penalties not to exceed ten thousand dollars
($10,000) per day of such violations before February 4, 1987, and
not to exceed twenty-five thousand dollars ($25,000) per day for
each violation on or after February 4, 1987. On information and
belief, the Township will continue to violate section 301 of the
Act, 33 U.S.C. 1311, and the conditions of the 1985 Permit for
POTW No. 1, by failing to operate and maintain POTW No. 1
properly, unless enjoined by an Order of this Court.
SIXTH CLAIM FOR RELIEF: FAILURE
TO MAINTAIN POTW NO. 2 PROPERLY
55. Paragraphs 1 through 16 are realleged and
incorporated herein.
56. Condition I.A.5 of th. 1985 Psrmit for POTW No.
2, implementing section 301 of the Act, 33 U.S.C. 1 1311,
requires the Township to maintain POTW Mo. 2 in good working
order and to operate it as efficiently as possible.
57. At numerous times from August 1, 1985 to the
pr.ssnt, the Township has failed to maintain POTW No. 2 in good
working order and has fajl.d to operate it as •fficisntly as
possible. At various times from August 1, 1985 to th. present,
ths following conditions existed at TW No. 2: submerged
clarifier weirs; inoperable trickling filters; inoperable

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equalization tanks: poorly operated clarigesters; and poorly
operated secondary clarifierg. For example, on November 24,
1987, the following operation and maintenance deficiencies, among
others, were observed:
a. broken trickling filter arm;
b. the trickling filter was not functioning;
c. poorly operated clarigesters; and
d. poorly operated secondary clarifiers.
58. The operation and maintenance deficiencies
described in Paragraph 57 above constitute violations of section
301 of the Act, 33 U.s.c. 5 1311, and Condition I.A.5. of the
1985 Permit for POTW No. 2 implementing section 301 of the Act,
for which the Township is liable for th. imposition of injunctive
relief and civil penalties not to exceed ten thousand dollars
($10,000) per day of such violations before February 4, 1987, and
not to exceed twenty-five thousand dollars ($25,000) per day for
each violation on or after February 4, 1987. On information and
belief, the Township will continue to violate section 301 of the
Act, 33 U.S.C. 5 1311, and the conditions of the 1985 Permit for
POTW No. 2, by failing to operate and maintain P01W No. 2
properly, unless enjoined by an Order of this Court.
SEVENTh CLAIM FOR RELIEF: INDEMNITY
81 ThE STATE OP NEW JERSEY
59. Paragraphs 1 through 58 are realleged and
incorporated herein.
60. Pursuant to section 309(s) of the Act, 33 U.S.C.
5 1319(e), the Stats of New Jersey is joined as a party and is

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liable for the payment of any judgment, or any expenses incurred
as a result of complying with any judgment, entered against the
Township in this action to the extent that the laws of the State
prevent the Township from raising revenues needed to comply with
such judgment.
PRAYER FOR RELI
WHEREFORE, Plaintiff United States of America prays
that this Court:
1. Issue an order permanently enjoining the Township
of Maple Shade from discharging any pollutants from POTWs No. 1.
and No. 2 except as authorized by the Act and the NPDES Permits
issued to the Township;
2. Order the Township of Maple Shade to develop a plan
and schedule, subject to review and approval by EPA and this
Court, whereby POTWa No. 1 and No. 2 will achieve compliance with
the Act and the Township’s MPDES Permits at the earliest possible
date;
3. Order the Township of Maple Shade to implement the
approved compliance plan and achieve compliance with the Act and
the effluent limitations in its NPDES Permits in accordance with
the approved Schedule;
4. Order the Township of Maple Shade to correct all
operation and maintenance deficiences at POTWs No. 1 and No. 2,
including th. repair or replacement of inoperable trickling
filters and all other damaged or inoperable component, of the
existing treatment systems, and impose on the Township a

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schedule for performing all such repairs, maintenance and
operating improvements;
5. Impose a prohibition on the addition of any new
sewage flows or any new or extended connection to the Township’s
sewer systems conducting flows to POTWs No. 1 and No. 2,
effective until those POTWs are upgraded to comply with the Act
and the Township’s NPDES Permits.
6. Order the Township of Maple Shade to achieve and
maintain compliance with the Act and its NPDES Permits;
7. Assess civil penalties pursuant to section 309(d)
of the Act, 33 U.S.C. 1319(d), against the Township of Maple
Shade not to exceed tan thousand dollars ($10,000) per day of
violation before February 4, 1987, and not to exceed twenty—five
thousand dollars ($25,000) per day for each violation on or after
February 4, 1987, of section 301 of the Act, 33 U.S.C. § 131].,
and of any permit condition or limitation implementing section
30]. of the Act;
8. Order relief as appropriate in favor of the United
States and against the State of New Jersey pursuant to section
309(e) of the Act, 33 U.S.C. § 1319(e);
9. Order th. Township of Maple Shad. to r.imburs. the
Unit.d States for its costs and disbursements in this action; and

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10. Grant the United States such other relief as the
Court deems just and proper.
Respectfully submitted,
Roger 3. Marzulla
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
Washington, D.C. 20530
4am D 4rxghn
Senior Attorney
Environmental Enforcement Section
United States Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633—2445
SAflUEL A. ALITO, JR.
United States Attorney for the
District of New Jersey
By:
L/amas C. Woods
Assistant United States Attorney
970 Broad Street
Newark, New Jersey 07102
(201) 621—2949
OP COUNSEL:
Colas H. Phinizy, Jr.
Attorney
U.S. Environmental Protection Agency -
R.qion l l
26 Federal Plaza
Maw York, NY 10278 / ‘ 4
DATED: ‘ 2t i t t

\ ,

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OK lAHOMA
UNITED STATES OF AMERICA, )
)
Plaintiff, ) CIVIL ACTION NO.
)
v.
)
CITY OF BARTLESVILL,E, )
and the STATE OF OKL }IOMA ) •1
Defendants.
)
COMPUl NT
The United States of America, by authority of the Attorney
General and at the request of the Administrator of the United
States Environmental Protection Agency (‘EPA”), alleges as
follows:
1. This is a civil action brought pursuant to
Subsections 309(b) and (d) of the Clean Water Act (“the Act’), 33
U.S.C. § 1319(b) and Cd), for injunctive relief and assessment of
civil penalties against the City of Bartlesvil le, for its
discharges of pollutants in violation of Section 301 of the Act,
33 U.S.C. § 1311, and for violations of the conditjo s and
limitations of its National Pollutant Discharge Elimination
System (NPDES”) permits issued by EPA and the State of Oklahoma
pursuant to Section 402 of the Act, 33 U.S.C. § 1342. This is

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—2—
also an action for appropriate relief against the State of
Oklahoma under section 309(e) of the Act, 33 U.S.c. 5 1319(e).
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject matter
of this action under 28 U.S.C. §5 1331, 1345 and 1355, and
Subsection 309(b) of the Act, 33 U.S.C. 5 1319(b). Notice of
commencement of this action has been given to the State of
Oklahoma and is further given by naming it as a defendant herein
and serving this complaint.
3. Venue is proper in the Northern District of
Oklahoma pursuant to 28 U.S.C. 5 1319(b) and (C) and 1395(a), and
Subsection 309(b) of the Act, 33 U.S.C. S 1319(b), because it is
the judicial district in which the City of Bartlesvjlle is
located and in which the alleged violations occurred.
PARTIES
4. Plaintiff is the United States of America, acting
at the request and on behalf of the Administrator of EPA.
5. Defendant City of Bartlesville (“the City) is a
political subdivision of the State of Oklahoma, duly chartered
and formed under the laws of the State of Oklahoma, and is a
‘municipality’ within the meaning of Subsection 502(4) of the
Act, 33 U.S.C. § 1362(4).
6. The State of Oklahoma is joined as a defendant in
this action pursuant to subsection 309(e) of the Act, 33 U.S.c.

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§ 1319(e), and under the terms of that provision is liable for
payment of any judgment, or any expenses incurred as a result of
complying with any judgment, entered against the City to the
extent that the laws of Oklahoma prevent the City from raising
revenue needed to comply with the judgment.
GENERAL ALLEGATIONS
7. The City owns and operates a Publicly owned
treatment works (POTW) located in Bartlesvj]]e. That POTW
collects and treats waste water from residential, com ercja1 and
industrial sources and then discharges those wastewaters into
the Caney River.
8. The City ‘discharges pollutants’ within the meaning
of Subsections 502(6) and (12) of the Act, 33 U.S.c. 1362(6)
and (12), from its POTW through a ‘point source’ within the
meaning of Subsection 502(14) of the Act, 33 U.S.c. 1362(14),
into the Caney River, which is a ‘navigable water’ within the
meaning of Subsection 502(7) of the Act, 33 U.S.C. §1362(7), and
40 C.F.R. §122.2.
9. Subsection 301(a) of the Act, 33 U.S.C. § 1311 (a),
prohibits the discharge of pollutants by any person except in
compliance with that section and, int j Sections 307 and
402 of the Act, 33 U.S.C. § 1317 and 1342.
10. Under Section 402 of the Act, 33 U.S.C. § 1342,
the Administrator may issue an NPDES permit which authorizes the
discharge of pollutants directly into navigable waters of the

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United States, but only upon compliance with the applicable
requirements of Section 301 of the Act, 33 U.S.C. § 1311, and
such other conditions as the Administrator determines are
necessary to carry out the provisions of the Act.
11. Pursuant to section 402(a) of the Act, 33 U.S.C.
§ 1342(a), EPA issued to the City NPDES Permit No. 0X0030333
(“Permit”) on February 14, 1986, with an effective date of
February 15, 1986. The Permit will expire on February is, 1991.
12. The Permit authorized and continues to authorize
the City to discharge pollutants from its POTw into the Caney
River, subject to certain limitations and conditjo s.
Specifically, the Permit Contained and contains specific
limitations on the amounts of biochemical oxygen demand or BOD
(a measure of the oxygen used by a pollutant), total suspended
solids and fecal coliform bacteria that can be discharged weekly
and monthly by the City’s POTW.
13. The Permit also prescribes certain monitoring,
reporting and management requirements, including a requirement
that the City maintain its POTW in good working order and operate
its POTW as efficiently as possible.
14. Subsections 309(a) (3) and (b) of the Act, 33
U.S.C. §1319(a) (3) and (b), provide, in part, for the
commencement of an action for appropriate relief, including
permanent or temporary injunctions, against any person who
violates, inter Section 301 of the Act, 33 U.S.C. 1311,

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including any permit condition or limitation implementing such
sections, or violates any Condition or limitation in any NPDES
permit issued under section 402 of the Act, 33 U.s.c. S 1342.
15. Subsection 309(d) of the Act, 33 U.S.c. 5 1319(d),
provides, in part, that any person who violates, inter
Section 301 of the Act, 33 U.S.C. S 1311, including any permit
condition or limitation implementing such sections, or violates
any condition or limitation in any NPDES permit issued under
5 402 of the Act, 33 U.S.c. 5 1342, shall be subject to a civil
penalty not to exceed $10,000 per day or such violation prior to
February 4, 1987, and $25,000 per day for each violation
thereafter.
FIRST C lAIM FOR RELIEF
16. Paragraphs 7 through 15 are realleged and
incorporated herein by references as if fully set forth below.
17. Since its Permit became effective, the City has
discharged on many occasions, and continues to discharge,
pollutants through a point source at its POTW into navigable
waters in excess of effluent limitations of its Permit.
Specifically, the city violated and continues to violate the
effluent limitations for the pollutants DOD, total suspended
solids, ammonia, and fecal colifora bacteria.
18. Each of the City’s discharges of pollutants in
excess of levels authorized by its Permit constitutes a separate
violation of Sections 301 and 402 of the Act, 33 U.S.C. 5 131].

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and 1342, and of the permit conditjons and limitations
implementing Sections 301 and 402 of the Act, 33 U.S.C. § 1311
and 1342.
19. Pursuant to Subsections 309(b) and (d) of the Act,
33 U.S.C. § 1319(b) and (d), the City is liable for injunctive
relief and civil penalties not to exceed $10,000 per -day of
violation before February 4, 1987, and not to exceed $25,000 per
day of violation on or after February 4, 1987, for each of its
violations of Sections 301 and 402 of the Act, 33 U.S.C. § 1311
and 1342. Unless enjoined by this Court, the City’s violations
will continue.
SECOND CLAIM FOR RELIEF
20. Paragraphs 7 through 15 are realleged and
incorporated herein by reference as if fully set forth below.
21. Pursuant to Subsection 309(e) of the Act, 33
U.S.C. § 1319(e), the State of Oklahoma is liable for payment of
any judgment, or any expenses incurred as a result of complying
with any judgment, entered against the City to the extent that
its laws prevent the City from raising revenues needed to comply
with such judgment.
PRAYER FOR RELIEF
WHER.EFORE, Plaintiff, United States of A erica, prays
that the Court:
1. Permanently enjoin the City from discharging

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pollutants except as expressly authorized by the Act and the
City’s NPDES permit;
2. Order the City to comply with all terms and
Conditions of its NPDES Permit No. 0K0030333 and the Act;
3. Pursuant to Subsection 309(d) of the Act, 33 U.s.c.
§ 1319(d), assess the City civil penalties not to exceed $10,000
per day of violation prior to February 4, 1987, and $25,000 per
day of violation since February 4, 1987 up to the date of
judgment herein, of Sections 301 and 402 of the Act, 33 U.s.c.
§ 1311 and 1342, and of its NPDES permit;
4. Award relief against the State of Oklahoma pursuant
to Subsection 309(e) of the Act, 33 U.S.C. l 3 19(e);
5. Award the United States its costs and disburs ents
in this action; and
6. Grant the United States such other relief as this
Court deems appropriate.
Respectfully submitted,
Acting Assistant Attorney General
I4nd and Natural Resource Division

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OF COUNSEL:
Barbara Luke
Susan Carrie Wilkins
:orney
Environmental Enforcement Section
Land & Natural Resources Djvjsjon
U. S. Department of Justice
P.O. Box 7611
Benjamin Franklin Station
Washington, D.C. 20044
(202) 633—1684
TONY N. GRA]W
United States Attorney
BY
NANCY B S
Assistan ited States Attorney
3600 U.S. Courthouse
333 West Fourth Street
Tulsa, Oklahoma 74103
(918) 581—7463

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNiTED STATES OF AMERICA,
Plaintiff,
V.
Civil Action No. 90-
PUERTO RICO ADMINISTRATION OF
CORRECTIONS,
Defendant.
COMPLAINT
The United States of America, at the request of and on the behalf of the
Administrator of the United States Environmental Protection Agency (“EPA”), alleges
the following:
NATURE OF ACTION
1. This is a civil action brought pursuant to Sections 309(b) and (d) of the
Clean Water Act (“the Act”), 33 U.S.C. (( 1319(b) and (d), for injunctive relief and civil
penalties against the Puerto Rico Administration of Corrections (“PRAC”) for its
discharges of pollutants in violation of Section 301(a) of the Act, 33 U.S.C. (1311(a),
and for its violations of certain terms and conditions of National Pollutant Discharge
Elimination System (“NPDES”) permits issued to PRAC by EPA pursuant to Section
402 of the Act, 33 U.S.C. (1342.

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JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject matter of this action and
the parties pursuant to Section 309(b) of the Act, 33 U.S.C. § 1319(b), and 28 U.S.C.
§( 1331, 1345 and 1355.
3. Venue is proper in this judicial district pursuant to Section 309(b) of
the Act, 33 U.S.C. § 1319(b), and 28 U.S.C. § 1391(b) because PRAC is located, and
the alleged violations occurred, in this judicial district.
GENERAL ALLEGATIONS
4. Notice of the commencement of this action has been provided to the
Commonwealth of Puerto Rico pursuant to Section 309(b) of the Act, 33 U.S.C. §
1319(b).
5. PRAC is a public corporation and government instrumentality created
by legislative enactment in 1974 to administer an integrated correctional system.
Laws of Puerto Rico Annotated , title 4, U 1101 sea .
6. PRAC is a “person” within the meaning of Section
502(5) of the Act, 33 U.S.C. § 1362(5).
7. PRAC owned and operated at all relevant times, and continues to
own and operate, three facilities that collect and treat wastewater from sources
located within the Commonwealth. Each of these facilities is a wastewater treatment
plant (“WWTP”).
8. The first facility, Guay ma Penal Institution Wastewater Treatment
Plant (“Guay5Im 1”), is located at Guayama, Puerto Rico. Guay mR discharged at all

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relevant times, and continues to discharge, wastewater and other ‘pollutants” within
the meaning of Section 502(6) of the Act, 33 U.S.C. § 1362(6), from a “point source”
within the meaning of Section 502(14) of the Act, 33 U.S.C. § 1362(14), into the Old
Melania River. This River is a “navigable water” within the meaning of Section
502(7) of the Act, 33 U.S.C. § 1362(7). Discharges from Guayama into this River are
“discharges of pollutants” within the meaning of Sections 30 1(a) and 502(12) of the
Act, 33 U.S.C. §j 1311(a) and 1362(12).
9. The second facility, Guavate Penal Camp Wastewater Treatment
Plant (“Guavate”), is located on State Road, Cayey, Puerto Rico. Guavate discharged
at all relevant times, and continues to discharge, wastewater and other “pollutants”
within the meaning of Section 502(6) of the Act, 33 U.S.C. § 1362(6), from a “point
source” within the meaning of Section 502(14) of the Act, 33 U.S.C. § 1362(14), into
an unnamed creek which is a tributary of the La Plata River. This unnamed creek
is a “navigable water” within the meaning of Section 502(7) of the Act, 33 U.S.C. §
1362(7). Discharges from Guavate into this unnamed creek are “discharges of
pollutants” within the meaning of Sections 301(a) and 502(12) of the Act, 33 U.S.C.
* 1311(a) and 1362(12).
10. The third facility, Zarzal Penal Camp Wastewater Treatment Plant
(“Zarzal”), is located on State Road, Rio Grande, Puerto Rico. Zarzal discharged at
all relevant times, and continues to discharge, wastewater and other “pollutants”
within the meaning of Section 502(6) of the Act, 33 U.S.C. § 1362(6), from a “point
source” within the meaning of Section 502(14) of the Act, 33 U.S.C. § 1362(14), into

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an unnamed creek which is a tributary of Quebrada Juan Gonzales. This unnamed
creek is a “navigable water” within the meaning of Section 502(7) of the Act, 33
U.S.C. § 1362(7). Discharges from Zarzal into this unnamed creek are “discharges
of pollutants” within the meaning of Sections 301(a) and 502(12) of the Act, 33 U.S.C.
§ 13 11(a) and 1362(12).
11. Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the
discharge of any pollutant except in compliance with, inter, the requirements of
that Section and as authorized by and in compliance with a NPDES permit issued
pursuant to EPA’s permit-issuing authority contained in Section 402 of the Act, 33
U.S.C. § 1342.
12. Under Section 402(a) of the Act, 33 U.S.C.
(1342(a), EPA may issue a NPDES permit that authorizes the discharge of pollutants
but only upon compliance by the permit holder with certain requirements of the Act
or such other conditions as EPA determines are necessary to carry out the provisions
of the Act.
13. Pursuant to Section 402(a) of the Act, 33 U.S.C. 1 1342(a), EPA
issued to PRAC NPDES Permit No. PR0022136 (“Guayama Permit”) which permit
became effective on December 1, 1986. The Guays%ml Permit, which expires on
November 30, 1991, imposes upon PRAC certain effluent limitations and other
conditions. A true and correct copy of the Guayama Permit is attached to this
Complaint as Exhibit A.
14. Pursuant to Section 402(a) of the Act, 33 U.S.C. (1342(a), EPA

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issued to PRAC NPDES Permit No. PR0024589 (“Guavate Permit”) which permit
became effective on June 15, 1984. The Guavate Permit, which expired on June 14,
1989, but which remains in effect pending a decision on PRAC’s application for a new
permit, imposes upon PRAC certain effluent limitations and other conditions. A true
and correct copy of the Guavate Permit is attached to this Complaint as Exhibit B.
15. Pursuant to Section 402(a) of the Act, 33 U.S.C. ( 1342(a), EPA
issued to PRAC NPDES Permit No. PR0024571 (“Zarzal Permit”) which permit
became effective on June 15, 1984. The Zarzal Permit, which expired on June 14,
1989, but which remains in effect pending a decision on PRAC’s application for a new
permit, imposes upon PRAC certain effluent limitations and other conditions. A true
and correct copy of the Zarzal Permit is attached to this Complaint as Exhibit C.
16. Sections 309(a)(3), (b) and (d) of the Act, 33 U.S.C. § 1319(a)(3), (b)
and (d), authorize EPA to commence a civil action for injunctive relief and for civil
penalties for each violation of Section 301 of the Act, 33 U.S.C. § 1311, or any permit
condition or limitation implementing, inter alia . Section 301 of the Act, 33 U.S.C. §
1311, and contained in a permit issued under Section 402 of the Act, 33 U.S.C. §
1342.

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PRAC’S VIOLATIONS
17. EPA and the Puerto Rico Environmental Quality Board have
conducted inspections at PRAC’s facilities and those inspections inter alia form the
basis for the violations alleged herein.
18. Upon information and belief, PRAC will continue to violate the Act
and its implementing regulations and the terms and conditions of its permits unless
enjoined by Order of this Court.
19. PRAC is therefore subject to injunctive relief and is liable for the
assessment of civil penalties for each and every one of the following claims for relief.
FIRST CLAIM FOR RELIEF
Guavama - Exceeding Effluent Limitations
20. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
21. The Guayama Permit sets forth specific effluent limitations.
22. On numerous occasions, PRAC has discharged pollutants from
Guayama into navigable waters in excess of the effluent limitations set forth in the
Guayama Permit.
23. The discharges described in the preceding paragraph constitute
violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Guaya.ma Permit
conditions or limitations implementing Section 301 of the Act.

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SECOND CLAIM FOR RELIEF
Guayama - Omitting Reporting for Required Parameters
24. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
25. The Guay msi Permit mandates that PRAC submit discharge
monitoring reports (“DMRs”) to EPA. Said permit requires that the DMRs include
test results for numerous pollutant parameters as specified in the Guayama Permit.
26. On numerous occasions, PRAC has violated the conditions of the
Guayama Permit by failing to report in its DMRs test results for parameters required
by the Guay im Permit. These omitted parameters include, inter aija , flow,
dissolved oxygen, turbidity, color, total dissolved solids, chlorides, nitrite plus nitrate,
phosphorous, oil and grease, surfactant, and coliform.
27. The reporting deficiencies described in the preceding paragraph
constitute violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Guayama
Permit conditions or limitations implementing Section 301 of the Act.
THIRD CLAIM FOR RELIEF
Guayama - Failing to Monitor with Reauired Frequency
28. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
29. The Guayama Permit sets forth specific monitoring frequency
requirements for each effluent governed by the Permit. 30. On numerous
occasions, PRAC has violated the conditions of the Guayama Permit by failing to test

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-9-
for specified parameters with the frequency required by the Guayaxna Permit.
During this period, parameters that were required by the Permit to be tested daily
were often tested only weekly, or sometimes monthly.
31. The testing deficiencies described in the preceding paragraph
constitute violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Guayama
Permit conditions or limitations implementing Section 301 of the Act.
FOURTH CLAIM FOR RELIEF
Guayama - Failing to Submit Reauired DMRs
32. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
33. The Guayama Permit requires PRAC to submit to EPA a DMR for
Guayama on a quarterly basis.
34. On numerous occasions, PRAC has violated the conditions of the
Guayama Permit by failing to submit DMRs to EPA as required by the terms of the
Gua ama Permit.
35. Each failure to submit a DMR described in the preceding paragraph
constitutes a violation of Section 301 of the Act, 33 U.S.C. § 1311, and the Guayama
Permit conditions or limitations implementing Section 301 of the Act.
FIY H CLAIM FOR RELIEF
Guavama - Neglecting Operation and Maintenance Reouirements
36. Paragraphs 1 through 19, inclusive, of this complaint are hereby

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- 10 -
realleged and incorporated herein by reference.
37. The Guayama Permit imposes specific operation and maintenance
requirements upon PRAC.
38. On numerous occasions, PRAC has violated the conditions of the
Guayama Permit by failing inter to:
a. maintain in good working order and operate and maintain as
efficiently as possible all treatment systems and appurtenances;
b. provide adequate operator staffing and
training;
c. periodically calibrate flow measurement
equipment;
d. provide effective management practices, including establishing
procedures for training new operators, maintaining appropriate files,
maintaining instructions for operation and maintenance of each item of major
equipment, and maintaining an operation and m nthnance manual; and
e. properly dispose of sludges and solids.
39. The deficiencies described in the preceding paragraph constitute
violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Guayaim Permit
conditions or limitations implementing Section 301 of the Act.
SIXTH CLAIM FOR RELIEF
Guavania - Failing to Retain Records
40. Paragraphs 1 through 19, inclusive, of this complaint are hereby

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- 11 -
realleged and incorporated herein by reference.
41. The GuayRmsa Permit seth forth specific requirements for the
retention of records regarding test results for the parameters specified in the Permit.
42. On numerous occasions, PRAC has violated the Guayama Permit
conditions regarding retention of records by failing to:
a. maintain records concerning the sampling date, time, and
exact location; analysis dates and times; individuals performing analyses;
analytical methods used; and analytical results; and
b. maintain monitoring records for a minimum of three (3) years.
43. The deficiencies described in the preceding paragraph constitute
violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Guayama Permit
conditions or limitations implementing Section 301 of the Act.
SEVENTH CLAIM FOR RELIEF
Guavate - Exceeding Effluent Limitations
44. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
45. The Guavate Permit sets forth specific effluent limitations.
46. On numerous occasions, PRAC has discharged pollutants from
Guavate into navigable waters in excess of the effluent limitations set forth in the
Guavate Permit.
47. The discharges described in the preceding paragraph constitute

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- 12 -
violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Guavate Permit
conditions or limitations implementing Section 301 of the Act.
EIGHTH CLAIM FOR RELIEF
Guavate - Omitting Reporting for Required Parameters
48. Paragraphs I through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
49. The Guavate Permit mandates that PRAC submit DMRs to EPA.
Said permit requires that the DMRs include test results for numerous pollutant
parameters as specified in the Guavate Permit.
50. On numerous occasions, PRAC has violated the conditions of the
Guavate Permit by failing to report in its DMRs test results for parameters required
by the Guavate Permit. These omitted parameters include, inter alia . dissolved
oxygen, biochemical oxygen demand (“BOD”) , BOD removal, total suspended solids
(“TSS”), TSS removal, residual chlorine, fecal coliform and total coliform.
51. The reporting deficiencies described in the preceding paragraph
constitute violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Guavate
Permit conditions or limitations implementing Section 301 of the Act.
NINTH CLAIM FOR RELIEF
Guavate - Failing to Monitor with Required Frequency
52. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
53. The Guavate Permit sets forth specific monitoring frequency

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- 13 -
requiremente for each effluent governed by the Permit. 54. On numerous
occasions, PRAC has violated the conditions of the Guavate Permit by failing to test
for specified parameters with the frequency required by the Guavate Permit. During
this period, parameters that were required by the Permit to be tested daily were often
tested only weekly.
55. The testing deficiencies described in the preceding paragraph
constitute violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Guavate
Permit conditions or limitations implementing Section 301 of the Act.
TENTH CLAIM FOR RELIEF
Guavate - Failing to Submit Reauired DMRs
56. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
57. The Guavate Permit requires PRAC to submit to EPA a DMR for
Guavate on a quarterly basis.
58. On numerous occasions, PRAC has violated the conditions of the
Guavate Permit by failing to submit DMRs to EPA as required by the terms of the
Guavate Permit.
59. Each failure to submit a DMR described in the preceding paragraph
constitutes a violation of Section 301 of the Act, 33 U.S.C. § 1311, and the Guavate
Permit conditions or limitations implementing Section 301 of the Act.
ELEVENTH CLAIM FOR RELIEF
Guavate- Neglecting OT)eration and Maintenance Reciuirements

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- 14 -
60. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
61. The Guavate Permit imposes specific operation and maintenance
requirements upon PRAC.
62. On numerous occasions PRAC has violated the conditions of the
Guavate Permit by failing inter to:
a. maintain in good working order and operate and maintain as
efficiently as possible all treatment systems and appurtenances;
b. provide adequate operator staffing and
trpining;
c. periodically calibrate flow measurement
equipment;
d. provide effective management practices, including establishing
procedures for training new operators, maintaining appropriate files,
maintaining instructions for operation and maintenance of each item of major
equipment and rnfiintaining an operation and maintenance mi nua1; and
e. properly dispose of sludges and solids.
63. The deficiencies described in the preceding paragraph constitute
violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Guavate Permit
conditions or limitations implementing Section 301 of the Act.
TWELFFH CLAIM FOR RELIEF
Guavate - Failing to Retain Records

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15 -
64. Paragraphs I through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
65. The Guavate Permit seth forth specific requirements for the
retention of records regarding test results for the parameters specified in the Permit.
66. On numerous occasions, PRAC has violated the Guavate Permit
conditions regarding retention of records by failing to:
a. maintain records concerning the individuals performing
analyses; inRlytical methods used; and analytical results; and
b. maintain monitoring records for a minimum of thri (3)
years.
67. The deficiencies described in the preceding paragraph constitute
violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Guavate Permit
conditions or limitations implementing Section 301 of the Act.
THIRTEENTH CLAIM FOR RELIEF
Zarzal - Exceeding Effluent Limitations
68. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
69. The Zarzal Permit sets forth specific effluent limitations.
70. On numerous occasions, PRAC has discharged pollutants from
Zarzal into navigable waters in excess of the effluent limitations set forth in the
Zarzal Permit.
71. The discharges described in the preceding paragraph constitute

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- 16 -
violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Zarzal Permit
conditions or limitations implementing Section 301 of the Act.
FOURTEENTH CLAIM FOR RELIEF
Zarzal - Omitting Reporting for Required Parameters
72. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
73. The Zarzal Permit mandates that PRAC submit DMRs to EPA. Said
Permit requires that the DMRs include reporting results for numerous pollutant
parameters as specified in the Zarzal Permit.
74. On numerous occasions, PRAC has violated the conditions of the
Zarzal Permit by failing to report in its DMRs test results for parameters required
by the Zarzal Permit. The omitted parameters include, inter alia , flow, Biochemical
Oxygen Demand (“BOD”) load, BOD daily maximum capacity, BOD removal, Total
Suspended Solids (“TSS”), TSS load, Dissolved Oxygen, fecal and total coliform,
residual chlorine, pH, turbidity, Total Dissolved Solids, chlorides, nitrite plus nitrate,
total phosphorous, detergents, temperature, settleable solids, and oil and grease.
75. The reporting deficiencies described in the preceding paragraph
constitute violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Zarzal
Permit conditions or limitations implementing Section 301 of the Act.
Fii’ri ENTH CLAIM FOR RELIEF
Zarzal - Failing to Monitor with Required Frequency
76. Paragraphs 1 through 19, inclusive, of this complaint are hereby

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- 17 -
realleged and incorporated herein by reference.
77. The Zarzal Permit sets forth specific monitoring frequency
requirements for each effluent governed by the Permit. 78. On numerous
occasions, PRAC has violated the conditions of the Zarzal Permit by failing to test for
specified parameters with the frequency required by the Zarzal Permit. During this
period, parameters that were required by the Permit to be tested daily were often
tested only weekly.
79. The testing deficiencies described in the preceding paragraph
constitute violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Zarzal
Permit conditions or limitations implementing Section 301 of the Act.
SIXTEENTH CLAIM FOR RELIEF
Zarzal - Failing to Submit Required DMRs
80. Paragraphs 1 through 19, inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
81. The Zarzal Permit requires PRAC to submit to EPA a DMR for
Zarzal on a quarterly basis.
82. On numerous occasions, PRAC has violated the conditions of the
Zarzal Permit by failing to submit DMRs to EPA as required by the terms of the
Zarzal Permit.
83. Each failure to submit a DMR described in the preceding paragraph
constitutes a violation of Section 301 of the Act, 33 U.S.C. § 1311, and the Zarzal
Permit conditions or limitations implementing Section 301 of the Act.

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- 18 -
SEVENTEENTH CLAIM FOR RELIEF
Zarzal - Neglecting Operation and Maintenance Requirements
84. Paragraphs I through 19 inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
85. The Zarzal Permit imposes specific operation and maintenance
requirements upon PRAC.
86. On numerous occasions, PRAC has violated the conditions of the
Zarzal Permit by failing inter to:
a. maintain in good working order and operate and mRifltan
as efficiently as possible all treatment systems and appurtenances;
b. provide adequate operator staffing and
trai.ning
c. periodically calibrate flow measurement
equipment;
d. provide effective mnnagement practices, including establishing
procedures for training new operators, maintaining appropriate riles,
maintaining instructions for operation and maintenance of each item of major
equipment, and maintaining an operation and maintenance manual; and
e. properly dispose of sludges and solids.
87. The deficiencies described in the preceding paragraph constitute
violations of Section 301 of the Act, 33 U.S.C. § 1311, and the Zarzal Permit
conditions or limitations implementing Section 301 of the Act.

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- 19 -
EIGHTEENTH CLATh FOR RELIEF
Zarzal - FailinE to Retain Records
88. Paragraphs 1 through 19 inclusive, of this complaint are hereby
realleged and incorporated herein by reference.
89. The Zarzal Permit sets forth specific requirements for the retention
of records regarding test results for the parameters specified in the Permit.
90. On numerous occasions, PRAC has violated the Guayama Permit
conditions regarding retention of records by failing to:
a. maintain records concerning the sampling date,
exact location; analysis dates and times; individuals performing analyses;
analytical methods used; and analytical results; and
b. maintain monitoring records for a minimum of thi C3)
years.
91. The deficiencies described in the preceding paragraph constitute
violations of Section 301 of the Act, 33 U.s.c. § 1311, and the Zarzal Permit
conditions or limitations implementing Section 301 of the Act.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, the United States of America, prays that:
1. PRAC be permanently enjoined, pursuant to Section
309(b) of the Act, 33 U.S.C. § 1319(b), from any and all future violations of the Act
and from discharges of pollutants except as authorized by permit under 33 U.S.C. §
1342.

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- 21 -
6. This Court grant the United States such other and further relief as it deems
just and proper.
Respectfully submitted,
RICHARD B. STEWART
Assistant Attorney General
Environment and Natural Resources
Division
U.S. Department of Justice
PETER K. KAUTSKY
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 514-3907
DANIEL F. LOPEZ-ROMO
Assistant United States Attorney
District of Puerto Rico
Federal Office Building, Rm. 101
Canoe E. Chardon Avenue
Hate Rey, Puerto Rico 00918
OF COUNSEL:

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- 22 -
MICHAEL S. SIEGEL
Office of Regional Counsel
U.S. Environmental Protection Agency
Region II
26 Federal Plaza
New York, New York 10278
Dated: , 1990

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______ FILED -ENTERED
_____LODGED RECEIVED
AUG10 1987
1’ -
Al
CLERK U S DISTRICT COURT
2 WESTERN DISTRICT O WASHINGTON
OEPUTY
3
4
6
7
8 IN THE UNITED STATES DISTRICT URT
WESTERN DISTRICT OF WASHINGTON
9’
10 !IUNITED STATES OF AMERICA )
and STATE OF WASHINGTON, )
Plaintiffs, O87 J 088(1.
v. ) Civil Action No.
13; )
CITY OF LYNNWOOD, WASHINGTON, ) COMPLAINT
141! )
I! Defendant. )
15 1i ____________________)
16 Ii
1aL ti s, the United States of America, at the
17
18 request of the Administrator of the United States Environmental
Protection Agency (EPA) and by authority of the Attorney General
19
of the United States a d the State of Washington, by the Attorney
201’
I 1 General of Washington at the request of the Director of the
21 ii
Washington Department of Ecology, allege as follows:
22
1. This is a civil action pursuant to Section
23
309(b)(d) and Ce) of the Clean Water Act, 33 U.S.C. § 1319(b)(d)
24
25
26 COMPLAINT - 1
United States Attorney’s Office
1 3600 Seafirst 5th Avenue
Plaza 800 5th Avenue
Seattle, Washington 98104
(206) 442-7970
IIIII%I l)l i) uI 1

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I
I arid (e), (Act), and the Revised Code of the State of Washington,
2 RCW 90.48.037, for injunctive relief and civil penalties against
3 the City of Lynnwood, Washington (City) for the discharge of
4 pollutants into navigable waters of the United States and waters
5 of the State in violation of the City’s National Pollutant
6 Discharge Elimination System (NPDES) permit, the Clean Water
7 Act and the Revised Code of Washington.
8 2. The State of Washington (State) has joined as a
9 party plaintiff under Section 309(e) of the Act, 33 U.S.C.
10 § 1319(e). That section requires that in any civil action brought
ii by the United States against a municipality the State “shall be
12 i joined as a party.”
13 I 3. This Court has jurisdiction over the subject
14 I! matter of this action and the parties pursuant to 33 U.S.C.
15 § 1319(b) and (e) and 28 U.S.C. §S 1345 and 1355 and has pendent
16 jurisdiction over claims of the State.
17 4. Ver*ue is proper in this judicial district pursuant
18 to 33 U.S.C. § 1319(b) and 28 U.S.C. § 1391(b).
19 5. Defendant City of Lynriwood is a “municipality”
20 Ii and a “person” as defined in 33 U.S.C. § 1362(4) and (5).
21 6. At all times relevant, the City owned and operated
22 a publicly owned treatment works (POTW) as that term is defined
23 in 40 C.F.R. § 122, located in Snohomish County, State of
24 Washington.
25
26 COMPLAINT - 2
United States Attorney’s Office
3600 Seafirst 5th Avenue
Plaza 800 5th Avenue
Seattle, Washington 98104
(206) 442-7970
IOkMllBfl-I
II ’

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1 7. The POTW collects and treats sewage and wastes
2 from residential, commercial and industrial sources and has done
so at all relevant times.
4 8. At all relevant times the City has discharged
5 pollutants, as defined in 33 U.S.C. § 1362(6), into Brown’s Bay.
6 9. Brown’s Bay is a navigable water of the United
States as defined in 33 U.S.C. § 1362(7) and a water of the
8 State.
9 10. At all relevant times, the discharges of pollutants
10 ‘have been and continue to be through a point source as defined
1 by 33 U.S.C. § 1362(14).
12 11. Section 1311 of Title 33, United States Code,
13 prohibits the discharge of any pollutant from a point source to
14 navigable waters of the United States except in compliance with
15 ‘the terms and conditions of an NPDES permit, including effluent
limitations contained therein.
17 12. Defendant City was required by 33 U.S.C.
18 § 1311(b)(1)(B) to achieve “secondary treatment” effluent
19 1 limitations by July 1 , 1977.
20 13. Defendant City is, and at relevant times has been,
21 required by NPDES permit No. WA-O02403- and by RCW 90 .52.040
1 to meet secondary effluent limitations.
22
FIRST CLAIM FOR RELIEF
23
24 14. Paragraphs 1 through 13 are realleged.
25
COMPLAINT - 3
26 United States Attorney’s Office
3600 Seafirst 5th Avenue
Plaza 800 5th Avenue
Seattle, Washington 98104
(206) 442-7970
I ( 1KM l KI).I %
Mall I

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1 15. Defendant City failed to achieve secondary
2 treatment limitations by July 1, 1977, the date mandated in its
3 NPDES permit.
4 16. Defendant City still has not achieved secondary
5 treatment limitations.
6 17. Defendant City is liable to the United States for
a civil penalty not to exceed $10,000 per day for each day it
8 failed to achieve secondary treatment limitations.
9 18. Unless enjoined by this Court, the City will
10 continue to fail to achieve secondary treatment limitations.
11 II SECOND CLAIM FOR RELIEF
12 19. Paragraphs 1 through 13 are realleged.
13 I 20. From a time prior to September 1981 and continuing
14 1 until the present, the City violated effluent limitations in
15 its NPDES permit including but not limited to, Biological
16 Oxygen Demand (BOD) Monthly Average, Biological Oxygen Demand
17 I Weekly Average, Total Suspended Solids (TSS) Monthly Average,
18 Total Suspended Solids Weekly Average, Fecal Coliform Bacteria
19 (FC) Monthly Average, Percent Removal BOD and Percent Removal TSS.
20 21. Defendant City is liable to the United States for
21 civil penalties not to exceed $10,000 per day of such violation.
22 j 22. Unless enjoined by this Court, the City will
23 continue to violate the effluent limitations in its permit and
24 the Clean Water Act.
25
26 I COMPLAINT - 4
United States Attorney’s Office
3600 Seafirst 5th Avenue
Plaza 800 5th Avenue
Seattle, Washington 98104
(206) 442—7970
I 0MM 4PB1) IN’

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1 THIRD CLAIM FOR RELIEF
2 23. Paragraphs 1 through 13 and paragraphs:15, 16, 18,
3 20 and 22 are realleged.
4 24. In violating the terms and conditions of its
5 permit, Defendant City violated the Revised Code of Washington,
6 ‘RCW 90.52.040.
7 25. Defendant is liable to the State for injunctive relief
8 pursuant to RCW 90 .48.037 and for other appropriate relief.
9 PRAYER FOR RELIEF
10 Wherefore, plaintiffs pray this Court:
11 1. To enjoin the City of Lynnwood from discharging
12 lpollutantS to waters of the United States and the State of
13 Washington except as authorized by its NPDES permit;
14 2. To enjoin the City to immediately undertake and
is expeditiously complete all necessary construction to achieve
16 secondary effluent limitations as set forth in 40 C.F.R. § 133;
17 I 3. To enjoin the City from allowing any new connections
18 1 to its sewer system until the POTW comes into compliance with
19 lithe Clean Water Act and 40 C.Y.R. § 133;
20 4. To assess a civil penalty of $10,000 per day of
21 such violation of its permit and of the Clean Water Act against
22 the City and in favor of the United States.
23 5. To enjoin the City from further violating the
24 Revised Code of Washington. RCW 90.52.040.
25
26 1 COMPLAINT - 5
United States Attorney’s Office
3600 Seafirst 5th Avenue
Plaza 800 5th Avenue
Seattle, Washington 98104
(206) 442-7970
I(II(M4)HI) III I

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1 6. Grant Plaintiffs such additional and further
2 relief as the Court deems just and proper, including judgment
3 for costs and disbursements herein to be taxed.
4 Respectfully submitted,
I F. HENRY BIGIT It
7 Assistant Attorney General
Land and Natural Resources Division
8 U.S. Department of Justice
10th & Pennsylvania Avenue, N.W.
9 Washington, D.C. 20530
10
11 GENE ANDERSON
I United States Attorney
12 S ttle, Washington
13 fi
14 H J CKSON FOX
ssistant United States Attorney
15 3600 Seafirst 5th Avenue
Plaza 800 5th Avenue
16 Seattle, Washington 98104
17 I 1
KENNETH 0. EIKENBERRY
18 Attorney General
20
I i CHARLES P1. LEM
21 Assistant Attorney General
Temple of Justice
22 Olympia, Washington
23
24
25
26 COMPLAINT - 6
United States Attorney’s Office
3600 Seafirst 5th Avenue
Plaza 800 5th Avenue
Seattle, Washington 98104
(206) 442-7970
U1M.I (INI) I ))

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1 _______
AUL SCHAEF
2 Attor ey, Environmental Enforcement
Section
3 Land and Natural Resources Division
U.S. Department of Justice
4- 10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
5- (202) 633-1308
6 1 0F COUNSEL:
john Hohn
7 ‘Assistant Regional Counsel
u.s. Environmental Protection Agency
8 11200 6th Avenue
Seattle, Washington 98101
9
10
I,
12
13
14
15
16 I
17 I
18
19
20
21 1
22 -
23
24
25 COMPLAINT - 7
26 United States Attorney’s Office
3600 Seaflrst 5th Avenue
Plaza 800 5th Avenue
Seattle, Washington 98104
(206) 442-7970
P 0K M IPbI) IK
K’

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I.-B.-F. Discovery

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INflIM A
HAMMOND, INDIANA
UNITED STATES OF AMERICA, AND )
INDIANA STR.EAN POLLUTION CONTROL )
BOARD OF THE STATE OF INDIANA, )
)
plaintiffs, )
) CIVIL ACTION H 78-29 and
) H 86—540
)
v. ) UDGE LOZANO
)
THE CITY OF GARY. A MUNICIPAL )
CORPORATION, AND THE GARY )
SANITARY DISTRICT, )
)
Defendants. )
_________________)
UNITED STATES’ FIRST REQUEST FOR ADMISSIONS, INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS
(DIRECTED TO GARY SANITARY DISTRICT
plaintiff, United States of America, pursuant to Rule 36
of the Federal Rules of Civil Procedure, requests the Gary
Sanitary District (“GSD”) to admit the truth of the matters set
forth below within thirty (30) days of service hereof. In
addition, pursuant to Rules 33 and 34 of the Federal Rules of
Civil Procedure, plaintiff requests that GSD answer in writing
and under oath each of the interrogatories and the requests for
the production of documents as set forth below in accordance
with the following instructions and definitions.

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6
information can be obtained.” The term “document” also
includes electronically stored data from which information can
be obtained either directly or by translation through detection
devices or readers. Any such document is to be produced in a
reasonably legible and usable form.
REQUEST TO ADMIT NO. 2. .
GSD discharged pollutants from the Gary wastevater
treatment system in the concentrations and quantities
identified for each month in Attachment 1.
INTERROGATORY NO. 1 .
If the answer to Request to Admit No. 3. is anything other
than an unqualified positive for each month, state the basis
for such qualification or negative contention. Identify all
documents which relate to such contention.
REQUEST TO ADMIT NO. 2 .
Exhibits A.]. and A.2 attached hereto are true, accurate
and genuine copies of NPDES Permit No. IN 0022977, issued by
the Indiana Department of Environmental Management ( “IDEN”), to
GSD for the wastewater treatment plant.

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7
REOUEST TO ADMIT NO. 3 .
Exhibits B.l-B.25 attached hereto are true, accurate and
genuine copies of monthly discharge monitoring reports and
attached operating reports submitted to IDEII pertaining to the
wastevater treatment plant.
REQUEST TO ADMIT NO. 4 .
The numerical values reported in Exhibits B.l—B.25
attached hereto are true and correct.
INTERROGATORY NO • 2 .
If the answer to Request to Admit No. 4 is anything other
than an unqualified positive for all reported numerical values,
state the basis for such qualification or negative contention.
Identify all documents which relate to such contention.
INTERROGATORY NO. 3 .
Specify all periods of vacancies which have arisen for
the following positions: plant superintendent, director,
senior operating managers, laboratory director. For all
identified vacancy periods describe those steps taken by the
GSD to hire a person for the vacancies. Identify all
documents which relate to such vacancies and the hiring process
for those vacancies. In cases in which an interim person
filled the position for more than 20 days during any of thess

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B
specify all reasons why GSD contends it was necessary to fill
the position on such an interim basis. Identify all documents
‘which relate to such contention that it was necessary to fill
the position on such an interim basis.
INTERROGATORY NO. 4
Describe all training programs made available to GSD
personnel. Specify personnel who attended any such training
programs. Identify all documents which relate to GSD’s
response to this interrogatory. Identify persons with
knowledge of such training programs.
INTERROGATORY NO. 5 .
Identify any equipment which has been out of service at
the Gary wastewater treatment plant for more than 24
continuous hours. Specify the period of time that the
equipment was out of service, the steps taken by GSD to bring
the equipment back into service and all notification to
governmental entities regarding such outage periods. Identify

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9
all documents which relate to the equipment outage . and
attempts to bring the equipment back into service. Identify
persons with knowledge of such outages.
OUEST TO ADMIT NO. 5
The equipment identified in response to Interrogatory
No. 5 was essential during those periods to maintain compliance
with the applicable final effluent limitations.
INTERROCATORY NO. 6. .
If the answer to Request to Admit No. 5 is anything ether
than an unqualified positive for each identified equipment,
state the basis for Buch qualification or negative contention.
Identify all documents which relate to such contention.
Identify persons with knowledge of such contention.
REQUEST TO ADMIT NO. 6 .
Exhibit C attached hereto is a true, accurate and
genuine copy of the maintenance plan submitted to U.S. EPA
pursuant to Modified Consent Decree Section VI.A.7.c.

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10
P OUEST TO ADMIT NO. 7 .
GSD did not develop and implement a full employee training
program for the maintenance plan as required by Modified
Consent VI.A.7.c. and d.
INTERROGATORY NO. 7
If the answer to Request to Admit No. 7 is anything other
than an unqualified positive, state the basis for such
qualification or negative contention. Identify all documents
which relate to such contentions. Identify persons with
knowledge of such contentions. Describe in detail what GSD did
to implement the comprehensive maintenance plan described in
Modified Consent Decree Section VI.A.7.c. Identify all
documents which relate to the implementation.
OUEST TO ADMIT NO. B .
Exhibit C attached hereto contains a true, accurate and
genuine copy of the list of spare parts submitted to U.S. EPA
pursuant to Modified Consent Decree Section VI.A.9.a.
INTERROGATORY NO. B.
If the answer to Request to Admit No. 8 is anything other
than an unqualified positive, state the basis for such
qualification or negative contention. If applicable, identify

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11
a true, accurate and genuine copy of the submitted list of
spare parts. Specify those periods during which the critical
parts were not maintained as specified in the above-mentioned
critical parts list. For those periods during which the
critical parts were not available, specify the steps GSD took
to secure such parts. Identify all documents which relate to
GSD’s response to this interrogatory. Identify persons with
knowledge of spare parts and their availability.
INTERROGATORY No. 9 .
Identify those periods of time during which any of the
following were not present and in operating order at the
vastewater treatment plant: a metal turning lathe, a milling
machine, a drill press, a bench grinder, a hydraulic or arbor
press, two complete sets of mechanic’s hand tools, gauges, dial
indicators, and micrometers. During those identified periods
explain what steps GSD took to secure those tools. Identify
persons with knowledge of the availability of these tools.
Identify all documents related to the response to this
interrogatory.

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12
INTERROGATORY NO. l0 .
Describe in detail all sampling procedures used to meet
GSD’s NPDES permit requirements and 40 C.F.R. Part 136. Where
GSD’s procedures did not conform to the specifications-in the
permit or 40 C.F.R. Part 136, indicate the reason for the
difference, the time period involved and GSD’s contention as to
the accuracy of the procedure. Identify all documents which
relate to GSD’s procedures and any contentions made in response
to this interrogatory. Identify persons with knowledge of such
contentions and GSD’s sampling procedures.
INTERROGATORY NO.11
Identify all dry weather overflows and bypasses which
have occurred in the sewer regulator system and in the plant.
Describe the cause of such discharges and the steps that GSD
took to minimize and correct such discharges. Identify all
documents which relate to such discharges and corrective
measures. Identify all persons with knowledge of such

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13
discharges and any contentions made in response to this
interrogatory.
REOUEST TO ADMIT NO. 9 .
GSD did not submit any annual certification described in
Modified Consent Decree Section VI.A.15.
INTE RROGATORY NO. 12 .
If the answer to Request to Admit No. 9 ii anything other
than an unqualified positive, state the basis for such
qualified or negative contention. Identify all documents which
relate to such contention. Identify persons with knowledge of
any annual certifications.
INTERROGATORY NO. l3
Identify every user charge adopted and maintained by the
GSD and City of Gary. Identify all documents which relat. to
such identified user charges. Does GSD contend that the
identified user charges have been sufficient to ensure the
proper operation and maintenance of the wastewater treatment

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14
system? If the answer to the above is anything than an
unqualified negative, state the basis for such qualified or
positive contention. Identify all documents which relate to
such contention.
REOUEST TO ADMIT NO. 10 .
GSD did not enforce the pretreatment ordinance prior to
July 1988.
INT BROGATORY NO. 14 .
If the answer to Request to Admit No. 10 is anything
other than an unqualified positive, state the basis for such
qualified or negative contention. Identify all documents which
relate to such contention.
INTERROGATORY NO. l5
Identify all enforcement actions taken by GSD to enforce
the pretreatment ordinance. Identify all persons with
knowledge of such enforcement actions. Identify all documents
which relate to such enforcement activity.

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15
INTERROGATORY NO. 16 .
Does GSD contend that the plant’s scum removal,
incinerator and rapid sand filter facilities have operated.
If so, identify such periods and describe the extent of their
operation. Identify all documents which relate to their
operation. Identify all persons with knowledge of their
operation.
REOUEST TO ADMIT NO. 11 .
GSD has not taken the steps described in Attachment 2 by
the times specified in Attachment 2, related to the reinediation
of the Ralston Street lagoon.
INTERROGATORY NO • 17. .
If GSD contends that it has taken the steps described in
Attachment 2 by the times specified in Attachment 2 or at any
other time, state the basis for any such contention, including -
time periods associated with those steps. Identify all
documents which relate to such contention. Identify all
persons with knowledge of such actions.

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16
REQUEST TO ADMIT NO. 12 .
GSD submitted, or failed to submit, the monthly reports as
described in Attachment 3. Moreover, the due dates for the
reports described in Attachment 3 are the correctly calculated
dates required by the Modified Consent Decree in Section VII.A.
INTERROGATORY NO. 18 .
If the answers to Request to Admit No. 12 are anything
other than an unqualified positive for all report., state the
basis for such qualified or negative contention. Identify all
documents which relate to such contention. Identify persons
with knowledge of such contentions.
INTERROGATORY NO. 19
Describe in detail all effluent and influent testing
procedures, locations and techniques used at the plant. Where
such techniques, procedures or locations do not conform to the
techniques, procedures or locations specified in the permit and
regulitions promulgated under Section 304(h) of the Act, and

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17
40 C.P.R. Part 136, Subpart D, indicat, the reason for the
difference, the time period involved and CSD’s contention as to
the accuracy of the testing. Identify all documents which
relate to such testing and all contentions made in response to
this interrogatory. Identify persons with knowledge of such
sampling and analyses.
INTERROGATORY NO. 20 .
Identify all persons known or believed by you or any
person acting on your behalf with knowledge of any the facts
giving rise to this action or your defenses. Describe their
knowledge of this action or your defenses.
INTERROGATORY NO. 21 .
Identify, as to name, address and qualifications, all
persons you intend to call as expert witnesses at the trial of
this matter. State his or her opinions and the factual basis
for such opinions.

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18
REQUEST FOR PRODUCTION OF DOCUMENTS (FIRST SET
Produce all the documents identified pursuant to United
States’ Interrogatories (first set).
Respectfully submitted,
JAMES G • RIC)0 OND
United States Attorney
By:
ANDREW B. BAKER, JR. I’
Assistant United State.
Attorney
Northern District of Indiana
FTS 370—5215
ROBERT OAKLEY
U.S. Department of Justice
Lands and Natural Resource.
Division
Washington, D.C. 20530

Associate Regional Counsel
U.S. Environmental Protection
Agency, Region V
230 South Dearborn Street

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u V I3IJUN 1988
(1.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
V. )
)
THE CITY OF TERRE HAUTE, ) Civil Action No. TH—87-207—C
INDIANA, )
a Municipal Corporation, )
and THE STATE OF INDIANA, )
)
Defendants. )
_________________________________________________________________________ )
PLAINTIFFS FIRST SET OF REQUESTS
FOR ADMISSIONS
Plaintiff, the United States of America, pursuant to Rule 36
of the Federal Rules of Civil Procedure, hereby propounds and
serves upon defendant this First Set Of Requests For Admissions.
The matters set forth in these Requests shall be deemed to be
admitted unless defendant serves upon plaintiff written answers
or objections to these Requests within thirty (30) days after
service hereof.
D E F INI I I Otis
‘Act’ means the Clean Water Act, 33 U.S.C. § 1251—1377.
‘City’ means defendant, the City of Terre Haute, Indiana.
‘The facility’ means the wastewater treatment plant located
at R.R. 21, Pralreton Road, Terre Haute, Vigo County, Indiana.
‘NPDES permit’ means a National Pollutant Discharge Ellinina—
tion System permit issued pursuant to Section 402 of the Clean
Water Act. 33 U.S.C. § 1342.

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—2-
REQUEST FOR ADMISSIONS
Request No. 1 Defendant, Terre Haute, is the sole owner of the
fact lity.
Response to Request No. 1:
Request No. 2 Defendant, Terre Haute, Is the operator of the
facility.
Response to Request No. 2:
Request No. 3 : Wastewaters are discharged daily from the facility
Into the Wabash River.
Response to Request No. 3:
Request No. 4 : The wastewaters discharged from the facility to
the Wabash River contain one or more of the following materials:
biochemical oxygen demanding materials, fecal coliform bacteria,
suspended solids, and dissolved oxygen.
Response to Request No. 4:
Request No. 5 : The City is a upersonu within the meaning of Section
502(5) of the Act, 33 U.S.C. § 1362(5).

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—3-
Response to Request No. 5:
Request No. 6 : The Wabash River Is a navigable water of the
United States ’ within the meaning of Section 502(7) of the Act,
33 U.S.C. § 1362(7).
Response to Request No. 6 :
—
Request No. 7 : Biochemical oxygen demanding materials, fecal
coliform bacteria, and suspended solids are all upollutantsu
within the meaning of Section 502(6) of the Act, 33 U.S.C.
§ 1362(6).
Response to Request No. 7:
Request No. 8 : The outfalls from the facility to the Wabash
River (denominated 001 and 101) are point sources within the
meaning of Section 502(14) of the Act, 33 U.S.C. § 1362(14).
Response to Request No. 8:
Request No. 9 : The document attached hereto as Admission Exhibit
1 Is a genuine, true and authentic copy of the NPDES Permit (No.
0025607) Issued by the Indiana Stream Pollution Control Board to
Terre Haute on August 31, 1979.

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Response to Request No. 9:
Request No. 10 : The document attached hereto as Admission Exhibit
2 is a genuine, true and authentic copy of the NPDES permit (No.
1N0025607) reissued by the Indiana Stream Pollution Control Board
to Terre ilaute on February 5, 1986.
Response to Request No. 10:
Request No. 11 : The documents attached hereto as Admission Exhibit
4are genuine, true and authentic copies of discharge monitoring
reports (DMRs) prepared by the City from February 1986, though and
Including August 1987.
Response to Request No. 11:
Request No. 12 : Between May 28, 1986, and May 30, 1986, repre-
sentatives of U.S. EPA conducted an inspection of the facility.
Response to Request No. 12:
Request No. 13 : Representatives of the City were present at this
May 1986 inspectIon.
Response to Request No. 13 : -

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Request No. 14 : The May 1986 U.S. EPA Inspection confirmed
that the Zimpro system and the vacuum filters had not been
operated at the facility since 1983.
Response to Request No. 14:
Request No. 15 : The May 1986 U.S. EPA inspection confirmed that
for the period September 1984 until April 1986, no withdrawal —
of disgested sludge was reported to the State of Ind1an during
thirteen (13) months.
Response to Request No. 15:
Request No. 16 :
The May 1986 U.S. EPA inspection confirmed that there was a
large buildup of grit and sand in the sludge digesters.
Response to Request No. 16:
Request No. 17 : The May 1986 U.S. EPA inspection confirmed that
the heaters for the sludge digesters were out of service.
Response to Request No. 17:
Request No. 18 : Due to the reduction of sludge removal capacity
at the facility, as documented In the May 1986 U.S. EPA Inspection,
the facility experienced a significant reduction of efficiency
In the sludge digestion system.
Response to Request No. 18 :

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—6—
! equest No. 19 : The May 1986 u.s. EPA Inspection confirmed
that there was a substantial reduction in sludge removal
capacity at the facility.
Response tp Request No. 19:
Request No. 20 : The 1985 U.s. EPA inspection confirmed that there
was a reduction in operating efficiency at the facility due to
reduced sludge removal and digestion capacities and efficiencies.
Response to No. 20:
Request No. 21 : Between December 10, 1986, and December 11,
1986, representatives of U.S. EPA conducted an Inspection of the
facility.
Response to Request No. 21:
Request No. 22 : RepresentatIves of the City were present
during this December 1986 inspectIon.
Response to Request No. 22:
Request No. 23 : The December 1986 U.S. EPA inspection confirmed
that all flows at the facility In excess of 24 millIon gallons
per day from the primary clarifiers were bypassed directly to
the chlorine contact tank.
Response to Request No. 23 :

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-7-
Request No. 24 : The December 1986 U.S. EPA inspection confirmed
that all flows at the facility In excess of 24 millIon gallons
per day from the primary clarifies were combined with secondary
effluent before discharge to the Wabash River.
Response to Request No. 24:
Request No. 25 : The December 1986 U.S. EPA Inspection conflrmed
that significant amounts of solids were being retained In the
primary system.
Response to Request No. 25:
Request No. 26 : The December 1986 U.S. EPA Inspection confirmed
the presence of black floating solids, and much gassing and
bubbling In the primary clarifiers.
Response to Request No. 26:
Request No. 27 : The presence of black floating solids, and
gassing and bubbling In the primary clariflers, as documented
In the December 1986 U.S. EPA inspection, Indicated that sludges
In the clariflers had become septic and were not being adequately
removed.
Response to Request No. 27 :

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Request No. 28 : The December 1986 US. EPA Inspection con-
firmed that the failure of the facility to maximize flows from
the primary clariflers through the secondary system prior to
bypassing the flow around the secondary system, has caused
excessive solids to the discharged to the Wabash River.
Response to Request No. 28 :
Respectfully submitted,
JOHN D. TINDER
United States Attorney
Southern District of Indiana
By: ________________________
flTARLES GOODLOE
Assistant U.S. Attorney
GORDON G. STONER
Attorney, Environmental
Enforcement Section
U.S. Department of Justice
9th & Pennsylvania Avenue
Washington, D.C. 20530
(202) 633—5465

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
V.
THE CITY OF TERRE HAUTE, Civil Action No. TH-87—207—C
INDIANA,
a Municipal Corporation,
and THE STATE OF INDIAHA, —
Defendants.
UNITED STATES’ FIRST REQUEST FOR
PRODUCTION OF DOCUMENTS
Plaintiff, United States of America, hereby requests pursuant
to Rule 34 of the Federal Rules of Civil Procedure, that Defendant,
City of Terre Haute, Indiana, produce the documents listed below.
Documents are to be produced for inspection and copying at the
office of the United States Attorney for the Southern District
of Indiana, United States Courthouse, Terre Haute, IndIana 47808,
or such other place as counsel for the parties may agree, within
30 days after service of this request.
INSTRUCTION AND DEFINITIONS
A. Terre Haute or the City means the City of Terre
Haute, Indiana, Its officers, employees, agents, servants, and,
unless privileged, its attorneys. These Requests for Production
cover all specified documents In the possession, control or
custody of the City.

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—4-
I. Dlscharge ’ is defined in § 502(12) and (16) of the Clean
Water Act, 33 U.S.C. § 1362(12) and (16), and includes discharges
of pollutants to navigable waters from any point source.
J. ‘ Pollutant ’ is defined In § 502(6) of the Clean Water Act,
33 U.S.C. § 1362(6).
K. ‘ NPDES permits ’ mean National Pollutant Discharge Elimina-
tion System permits issued by EPA or the State to the City and as
renewed or modified, for the facility.
1.. ‘ NPDES limits ’ means any discharge limitations or condi-
tions contained in the Cltys NPDES permits.
N. ‘ The facility ’ means the wastewater treatment plant
owned and operated by the City located at R.R. 21, Pralrieton
Road, Terre Haute, Vigo County, Indiana.
N. Words used in the plural shall also be taken to mean and
Include the singular. Words used In the singular shall also be
taken to mean and Include the plural.
0. These Requests for Production are continuing in nature
and must be supplemented if the City obtains further or different
Information or documents.
P. Unless otherwise stated, these requests apply to the
period beginning February 5, 1986, and ending at the trial of
this matter.
REQUESTS FOR PRODUCTION
1. AU organizational charts for the City of Terre Haute’s
department with responsibility for sewage and wastewater treatments
and charts for the facility.

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2. All permits and other documents which the City contends
have authorized water pollutant discharges from the facility
since 1986.
3. All documents relating to any modifications or extensions
of, or variances from, the NPDES permit or other water pollutant
discharge permit limits or conditions applicable to the facility.
4. All documents relating to reports, written or otherwise,
made to EPA or the State, excluding attachments to submitted Dis-
charge Ilonitoring Reports, of any water pollutant discharges from
the facility which exceeded NPDES limits.
5. All documents relating to or reporting any test results,
laboratory analyses, flow measurements and/or concentration analyses
of water pollutant discharges from the facility, including but not
limited to all discharge monitoring reports; non—compliance reports;
bypass reports; other reports on water pollutant discharges main-
tained by or sent to any other governmental entity; flow logs and
measurements; analyses or tests for Biochemical Oxygen Demand
(B0D), Dissolved Oxygen, Total Suspended Solids (TSS), and
Fecal Coliform; documents describing or reporting the toxic,
chemical or physical characteristics of such discharges; and all
underlying documents used as the basis for or In the preparation
of said documents.
6. All documents relating to difficulties encounteredby
the City In meeting applicable NPDES limits or other water
pollutant effluent limitations applicable to the facility.

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—6—
7. All documents relating to the causes and/or potential
causes of water pollutant discharges from the facility In excess
of applicable NPDES limits.
8. All documents evaluating facility procedures or alter-
native procedures for reducing water pollution discharges at
facility.
9. All documents containing Instructions to employees at
the facility regarding the level or amount of water pollutant
discharges.
10. All documents containing Instructions to employees regard-
Ing steps to taken In the event of an unauthorized discharge of
water pollutants at facility.
11. All documents relating to meetings, discussions, or oral
communications regarding water pollutant discharges from the
facility.
12. All documents relating to meetings, discussions or other
oral communications regarding technology, personnel training,
inspection, operation, maintenance or any other means to reduce
water pollutant discharges, or to achieve compliance with NPDES
limits or other water pollution control standards applicable to
the facility.
13. All documents, including minutes, relating to meetings
of the City’s officers, management personnel, facility personnel
or other agents regarding water pollutant discharges, including

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health or environmental effects, or compliance with NPDES limits
or other water pollution control standards applicable to the
facility.
14. All studies, evaluations, tests, reports, other documents
prepared by any contractor, agent or employee of the City or any
other person relating to water pollutant discharges, Including
health or environmental effects, or compliance with NPDES limits
or other water pollution control standards applicable to the
facility.
15. All documents relating to procedures for reporting water
pol-lutant discharges, or violating of water pollution laws or
regulations, to EPA or the State.
16. All documents relating to the cause of, and any action
taken or considered to correct bypasses of water pollutants to
the Wabash River from the facility.
17. All documents relating to procedures, written or other-
wise, employed by the City for investigating equipment or plant
upsets or bypasses at the facility.
18. All documents relating to practices or procedures,
written or otherwise, employed by the City regarding maintenance
or servicing of water pollutant control equipment at the facility.
19. All documents relating to practices or procedures,
written or otherwise, empolyed by the City regarding maintenance
or servicing of sludge treatment/handling equipment at the facility.

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—8-
20. All documents relating to daily and monthly Influent
pollutant loading In the facility.
21. All documents relating to design specifications end
treatment capacity at the facility.
22. All documents analyzing or evaluation facility equipment
with respect to reduction of water pollutant discharges at the
facility.
23. All documents which relate to the City’s consideration
or evaluation of the equipment referred to in Request No. 14, above,
or any other equipment designed or intended to reduce water poflu—
tion discharges at the facility.
24. All documents relating to consideration by the City of
whether to Install, not to Install and/or defer installation of,
water pollution control equipment at the facility.
25. All documents relating to consideration by the City of
whether to install, not to install and/or defer installation of,
sludge treatment/handling equipment at the facility.
26. All documents relating to consideration by the City of
whether to implement, not to Implement and/or defer implementa-
tion of water pollution control measures at the facility.
27. All documents relating to the advantages or disadvantages
or potential Implications to the City of delaying installation
or Implementation of water pollution equipment or measures at the
fact II ty.

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—9-
28. All documents relating to control technology, devices or
other equipment for the control or reduction of water pollutant
discharges at the facility.
29. All charts or diagrams illustrating facility operating
conditions and production flow at the facility.
30. All documents relating to change(s) In operation, main-
tenance or inspection procedures at the facility which were designed
to, or had the effect of. preventing or reducing discharges oriater
pollutants at the facility.
31. All documents which relate to:
(a) the capital cost of improving the
facility so as to comply with
applicable NPDES limits;
(b) the cost of maintaining and operating
facility so as to comply with applicable
NPDES limits;
(c) any other expenses associated with or
necessitated by compliance with applicable
NPDES limits or the Clean Water Act, 33 u.s.c.
§ 1251 et ! !. •
32. All documents which relate to:
(a) the capital, operating or maintenance costs
of water pollution control or sludge treatment!
handling equipment installed, or being considered
for installation, at the facility to achieve, or
contribute to the achievement of applicable water
pollution control standards, Including applicable
NPDES limits;
(b) the types, kinds or numbers of pieces of equip-
ment that correspond to the cost figure contaIned
in the documents produced In response to above.
33. All documents, Including bid requests, bids, estimates,
contracts or staff memoranda, which relate to any water pollution

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— 10 —
control or sludge treatment/handling equipment Installed, or to be
Instafled, at the facility.
34. All documents relating to meetings, discussions, or any
other oral communications relating to the cost of measures for
compliance with NPDES permits or other water pollution control
standards applicable to the facility.
35. All documents, Including training manuals, relating to
operating, testing or maintenance procedures with respect to water
pollutant control or sludge handling/trea m equipment at the
facility.
36. All documents relating to any complaints received by
the City from any source regarding water pollutant discharges from
the facility.
37. All documents relating to the effects of each of the
facility water Pollutant discharges on the quality, Integrity,
or cleanliness (even if such terms are not specifically therein
used) of the Wabash River or any other receiving waters.
38. All documents which refer or relate to contacts of any
kind (Including enforcement proceedings) between employees of EPA
or the State and persons representing or acting on behalf of the
City concerning water pollutant discharges from, or sludge handling!
treatment at, the facility, including internal City documents and
those received from EPA or the State.
39. Annual financial statements or summaries for the City for
the years 1986—1987.

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40. All documents relating to Initiatives, InCluding but not
limited to grant applications, bond measures or other revenue mea-
sures, undertaken or considered by the City for the purpose of
financing i nprovements at the facility.
41. All documents prepared for or furnished to any persons
retained by the City as a consultant or expert in connection with
the subject matter of the case.
42. All reports, memoranda, analyses, computations or other
documents, Including drafts, prepared by any person retained by
the City as a consultant or expert in connection with the subject
matter of this case.
43. All documents that the City Intends to rely on or intro-
duce at trial of this matter.
44. All sewer maps.
Respectfully submitted,
JOHN D. TINDER
United States Attorney
Southern District of Indiana
By: _______________________
CHARLES G000LOE
Assistant U.S. Attorney
GORDON 6. STONER
Attorney, Environmental
Enforcement Section
U.S. Department of Justice
9th & Pennsjlvania Avenue
Washington, D.C. 20530
(202) 633—5465

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Plaintiff,
v.
Civil Action No. 90-2119 (JAF)
)
PUERT,O RICO ADMINISTRATION OF
CORRECTIONS,
Defendant.
________________________________________________________________________________________ )
UNITED STATES’ FIRST SET OF INTERROGATORIES TO
DEFENDANT PUERTO RICO ADMINISTRATION OF CORRECTIONS
Pursuant to Rule 33 of the Federal Rules of Civil Procedure,
plaintiff United States of America hereby requests that defendant
Puerto Rico Administration of Corrections (“PRAC”) answer fully,
in writing, and under oath each of the following interrogatories
and serve such answers upon counsel for the United States at the
U.S. Department of Justice address listed below, within thirty
days of the date of service, in accordance with Federal Rule of
Civil Procedure 33(a).
INSTRUCTIONS
1. Identification of a natural person . Whenever in these
interrogatories there is a request to identify a natural person,
state:

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— 10 —
characteristics or constituents of any liquid, solid, or gaseous
substance.
16. “Test” includes every sampling or analytical procedure
(in situ or in a laboratory) to ascertain, characterize or
measure the nature, type, amount, chemical content, chemical or
physical properties or consistency of any substance.
17. “Treat,” “ treatment ” or “ treatment process ” means any
method, procedure or process by which a substance is treated,
reduced in quantity, diluted, detoxified, neutralized,
incinerated, recycled or mixed with other substances.
18. “ Zarzal facility ” means the Zarzal Penal Camp
wastewater treatment plant and surrounding buildings and
facilities, located in Rio Grande Puerto Rico.
19. “ Zarzal Permit ” means NPDES Permit No. PR0024571 issued
to PRAC, a copy of which is attached to the Complaint in this
action.
INTERROGATORIES
1. Please identify each Discharge Monitoring Report, Non-
compliance Report or any other report on discharges from any of
the PRAC facilities submitted to EPA or the Commonwealth.
2. Does PRAC contend that any of the information contained
in any of the Discharge Monitoring Reports, Non-compliance
Reports, or other reports identified in response to Interrogatory
1 is inaccurate or misleading? If so, for each such piece of
information:

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— 11 —
(a) state in what respect it is inaccurate or
misleading;
(b) state what PRAC contends the correct information
is, specifying the basis for this calculation, how
and when it was determined that the original
information was incorrect, and identifying any
documents relevant to this calculation;
(c) state the reason for the original error;
(d) identify all persons responsible for calculating
the original information;
(e) identify all persons responsible for calculating
the revised information; and
(f) state whether the allegedly correct, revised
information complies with PRAC’s NPDES limits.
3. With respect to any discharges from any of the PRAC
facilities which exceed NPDES effluent limits or any other
violations of permit limitations or conditions, does PRAC contend
that it could not prevent the violations from occurring? If so,
please state the basis of this contention with respect to each
such violation, identifying all persons, including experts or
consultants, with knowledge of the basis for this contention, and
identify all, documents relating to this contention.
4. Does PRAC contend that any permit violations are the
result of intake water exceeding permit limitations? If so,
please state the daily and monthly intake or influent pollutant
loadings in the wastewater treatment plants at each of the PRAC

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— 12 —
facilities for all parameters for which the NPDES permit sets
effluent limitations or monitoring requirements.
5. Please describe each measure considered or implemented
by PRAC to reduce water pollutant discharges or to achieve
compliance with PRAC’s NPDES permits, including but not limited
to modifications of pollution control facilities, including in
the description the nature of the measure, the period of time
during which it was considered, and the identity of the persons
who participated in the consideration or evaluation of the
measure. If any such measure was implemented, identify each
action taken to implement it and the costs or expenditures
relating to each such act. For measures not implemented, state
the reason the measure was not implemented and the estimated cost
of the measure, including operation and maintenance costs.
6. Please describe PRAC’s practices and procedures relating
to operation, maintenance, or servicing of water pollution
control equipment at each of the PRAC facilities and identify all
persons responsible for approving, implementing, or evaluating
such practices or procedures.
7. Please identify each person who has or had
responsibility with regard to any of the following matters at
each of the PRAC facilities:
(a) monitoring, analysis and reporting of pollutant
discharges;
(b) compliance with permit limitations and conditions
and water pollution control laws and regulations;

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— 13 —
(C) operation and maintenance of water pollution
control equipment; and
(d) design, management, control or evaluation of
practices and procedures at PRAC insofar as they
affect the discharge of water pollutants;
(e) training and supervision of employees;
(f) the financial Condition and affairs of PRAC or any
of the PRAC facilities.
8. Please identify all persons employed or retained by PRAC
directly or as a result of contracting or subcontracting, who
have knowledge of any of the following subjects:
(a) the nature and amount of water pollutants
discharged from any of the PRAC facilities;
(b) compliance with permit limitations and Conditions
at any of the PRAC facilities;
(c) operation and maintenance at any of the PRAC
facilities;
(d) sources of wastewaters at any of the PRAC
facilities;
(e) the financial Condition and affairs of PRAC or any
of the PRAC facilities, including but not limited
to budgeting, budget requests, cash flows, and
operating expenses.
9. Please state whether PRAC has a document retention
policy. If so, describe it, indicating how documents are

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— 14 —
categorized for purposes of the policy, and the length of time
that each type of document is retained.
10. Please identify all experts expected to testify at
trial, state the subject matter on which the expert is expected
to testify, the substance of the facts and opinion to which the
expert is expected to testify, and a summary of the grounds for
each opinion.
11. Please state the legal and factual bases for each of
PRAC’s Affirmative Defenses.
Respectfully submitted,
RICHARD B. STEWART
Assistant Attorney General
Environment and Natural Resources
( ivision
U . Department of Justice
By: J 1 (4 1 A
P PER K. KAUTSKY (
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 514—3907
DANIEL F. LOPEZ-ROMO
United States Attorney

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— 15 —
SILVIA CARRENO COLL, No. 203209
Assistant United States Attorney
District of Puerto Rico
Federal Office Building, Rm. 101
Carlos E. Chardori Avenue
Hato Rey, Puerto Rico 00918
(809) 766—5656
OF COUNSEL:
MICHAEL S. SIEGEL
Office of Regional Counsel
U.S. Environmental Protection Agency
Region II
26 Federal Plaza
New York, New York 10278

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA, )
)
Plaintiff,
)
v.
) Civil Action No. 90—2119 (JAF)
)
PUERTO RICO ADMINISTRATION OF )
CORRECTIONS,
)
Defendant.
)
UNITED STATES’ FIRST REQUEST FOR
PRODUCTION OF DOCUMENTS BY DEFENDANT
PUERTO RICO ADMINISTRATION OF CORRECTIONS
Plaintiff, United States of America, hereby requests
pursuant to Rule 34 of the Federal Rules of Civil Procedure, that
Defendant’ Puerto Rico Administration of Corrections (“PRAC”)
produce the documents listed below. Documents are to be produced
for inspection and copying at the office of the United States
Attorney for the District of Puerto Rico, c/o Silvia Carreno
Coil, Federal Office Building, Room 101, Carlos E. Chardon
Avenue, Hato Rey, Puerto Rico 00918, or such other place as
counsel for the parties may agree, within 30 days after service
of this request.

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—5—
REQUESTS FOR PRODUCTION
1. All documents relating to or reporting any test
results, laboratory analyses, flow measurements or concentration
analyses of water pollutant discharges from any of the PRAC
facilities, including but not limited to all discharge monitoring
reports, non-compliance reports or notifications, bypass reports,
flow logs, measurements, and any other reports relating to water
pollutant discharges maintained by or sent to any governmental
entity.
2. All studies, evaluations, reports or other documents
relating to water pollutant discharges at any of the PRAC
facilities, including but not limited to documents relating to
the health, environmental, or other effects of such discharges,
the toxic, chemical or physical characteristics of any discharges
from any of the PRAC facilities, or compliance with applicable
NPDES limits or other water pollution control standards.
3. All documents relating to meetings, discussions, or
communications regarding water pollutant discharges from any of
the PRAC facilities, including but not limited to documents
relating to technology, personnel training, inspection,
operation, maintenance, environmental impacts, or any means to
reduce water pollutant discharges or to achieve compliance with
NPDES limits or other water pollution control standards.
4. All documents relating to the causes or potential
causes of water pollutant discharges in excess of applicable
NPDES limits from any of the PRAC facilities.

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—6—
5. All documents relating to PRAC’s consideration,
analysis or evaluation of procedures or alternative procedures
for reducing water pollution discharges at any of the PRAC
facilities, including but not limited to all documents relating
to the advantages, disadvantages or potential implications to
PRAC of instituting such procedures.
6. All documents relating to any changes in operating,
maintenance, or inspection procedures at any of the PRAC
facilities which were designed to, or had the effect of,
preventing or reducing discharges of water pollutants.
7. All documents relating to PRAC’s submission of or
failure to submit discharge monitoring reports to EPA.
8. All documents relating to PRAC’s compliance at any of
the PRAC facilities with the operation and maintenance
requirements of the NPDES permits issued to PRAC, including but
not limited to the maintenance of treatment systems and
appurtenances, operator staffing and training, calibration of
flow measurement equipment, management practices, or disposal of
sludges and solids.
9. All documents relating to upsets or other factors beyond
the control of PRAC which caused or may have caused any
noncompliance with permit limitations at any of the PRAC
facilities.
10. All documents relating to PRAC’s record retention
policy and practice.

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—7—
1]. All documents relating to instructions to employees,
contractors, subcontractors, or prisoners at any of the PRAC
facilities regarding operation of the wastewater treatment
plants, including but not limited to, instructions concerning the
level or amount of water pollutant discharges or steps to be
taken in the event of an unauthorized discharge of water
pollutants.
12. All documents relating to practices and procedures for
reporting water pollutant discharges or violations of NPDES
permits, or water pollution laws or regulations to EPA or the
Commonwealth.
13. All documents relating to practices or procedures for
investigating equipment or plant upsets or bypasses at any of the
PRAC facilities.
14. All documents relating to practices or procedures
regarding operating, testing, maintenance, or servicing of the
wastewater treatment or pollution control equipment at any of the
PRAC facilities.
15. All documents relating to influent or intake water at
any of the PRAC facilities.
16. All documents relating to design specifications and
treatment capacity of any of the equipment at any of the PRAC
facilities.
17. All charts or diagrams illustrating operating
conditions at any of the PRAC facilities.

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—8—
18. All documents relating to the costs, or estimates of
costs, of changing any of the PRAC facilities so as to comply
with applicable NPDES limits, or of maintaining and operating any
of the PRAC facilities so as to comply with applicable NPDES
limits, or relating to any other costs or expenses associated
with or necessitated by compliance with applicable NPDES limits
or the Clean Water Act, 33 U.S.C. §1251 g.
19. All documents relating to the costs to date of
constructing, equipping, operating, or maintaining any of the
PRAC facilities.
20. All documents relating to the relationship between PRAC
and any party or parties authorized by PRAC to maintain, operate,
or oversee any of the PRAC facilities, including but not limited
to any contracts or agreements between PRAC and such parties, and
any documents relating to instructions or directions given by
PRAC to the party or parties concerning duties and
responsibilities at any of the PRAC facilities.
21. All documents (excluding the complaint in this lawsuit)
relating to any complaints received by PRAC from any source
regarding water pollutant discharges from any of the PRAC
facilities.
22. All documents which refer or relate to contacts of any
kind (including enforcement proceedings) between employees of EPA
or the Commonwealth and persons representing or acting on behalf
of PRAC concerning water pollutant discharges from any of the
PRAC facilities.

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—9—
23. All annual financial statements, budgets, and summaries
of such documents for PRAC for the years 1984—90.
24. All documents relating to revenue-raising by PRAC,
including but not limited to grant applications, bond measures or
other revenue-raising measures, undertaken or considered by PRAC.
25. All documents related to any environmental risk
assessment or other study regarding PRAC’s compliance with water
pollution control laws.
26. All documents prepared by or furnished to any person
retained by PRAC as a consultant or expert in connection with the
subject matter of this case.
27. All documents PRAC intends to rely upon or introduce at
trial of this matter.
28. All documents identified in response to, relied upon,
or referred to in responding to the United States’ First Set of
Interrogatories to Defendant Puerto Rico Administration of
Corrections.

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— 10 —
Respectfully submitted,
RICHARD B. STEWART
Assistant Attorney General
Environment and Natural Resources
p iv is ion
U.( . 1 jDe art ent of Justice
By:
P TE K. KAUTSKY
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 514—3907
DANIEL F. LOPEZ-ROMO
United States Attorney
SILVIA CARRENO COLL, No. 203209
Assistant United States Attorney
District of Puerto Rico
Federal Office Building, Rm. 101
Carlos E. Chardon Avenue
Hato Rey, Puerto Rico 00918
(809) 766—5656
OF COUNSEL:
MICHAEL S. SIEGEL
Office of Regional Counsel
U.S. Environmental Protection Agency
Region II
26 Federal Plaza
New York, New York 10278

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HANNOND, INDIANA
UNITED STATES OF ANERICA, AND
INDIANA STREAM POLLUTION CONTROL )
BOARD OF THE STATE OF INDIANA, )
)
Plaintiffs,
) CIVIL ACTION B 78-29 and
v. ) H 86—540
)
JUDGE LCZANO
THE CITY OF GARY, A MUNICIPAL )
CORPORATION, ‘AND THE GARY )
SANITARY DISTRICT, )
)
Defendants. )
)
NOTICE OF DEPOSITION
The plaintiff, United States of America, on behalf of the
United States Environmental Protection Agency (NU. S. EPA ”),
hereby notifies the defendant Gary Sanitary District, pursuant
to Rule 30(b)(6) of the Federal Rules of Civil Procedure, that
plaintiff will take the deposition of the person(s) designated
by the defendant who has the most knowledge of the subject
matter listed below, at the office of the United States
Attorney, Northern District of Indiana, 507 State Street, 4th
Floor, Hammond, Indiana, at 9:45 a.m., on December 6, 1989.
The deposition shall continue from day to-day until completed.

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2
Sublect Matter of Deøositi
- The discharge points of the vastevater collection system
for the Gary vastevater treatment plant. Plaintiff viii
inquire about the points in the wastevater collection system
where vastewater can be discharged. Moreover, plaintiff viii
inquire about the defendants’ inspection of these points, past
and existing flow monitoring devices and bypasses reporting —
procedures.
Respectfully submitted,
JAMES C. RICID(OND
United States Attorney
By:
ANDREW B. BAKER, JR 7
Assistant United States
Attorney
Northern District of Indiana
ROBERT OAKLEY
U.S. Department of Justice
Lands and Natural Resources
Division
Washington, D.C. -

Associate—Regional Counsel
U.S. Environmental Protection
Agency, Region V

-------
IT. Industrial Permits

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
J44N9 1989
UNITED STATES OF AMERICA, ) KENNETH I. MURPHY ci
CINCI JATI Q ,
Plaintiff, ) Civil Action No.
V. Judge 012
ASHLAND ETHANOL, INC. and )
OHIO FARM BUREAU, INC. anc
PUBLICKER GASOHOL, INC. and
UGI ETHANOL DEVELoPME CORP., )
TRADING UNDER THE NAME OP )
SOUTH POINT ETHANOL, CORP. )
A JOINT VENTURE PARTNERSHIP- )
SOUTH POINT, OHIO )
)
Defendants.
)
cOMPLAi rr
The United States of America, pursuant to the authority
of the Attorney General, and at the request of the Administrator
of the United States Environmental Protection Agency (‘U.S.
EPA’), by its undersigned attorneys, alleges:
I.
NATURE OF ACTIQ j
1. This is a civil action for injunctive relief and
civil penalties for Defendants’ violations of the Clean Water Act
(hereinafter ‘Act’), 33 U.S.C. §1251 nd the National
Pollutant Discharg. Elimination System (‘NPDE$’) permit No.
0H0076392.

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—2—
II.
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject matter
of this action pursuant to 28 U.S.C. H1331, 1345, 1355 and 33
U.S.C. §1319(b). Venue is proper in this District pursuant to 28
U.S.C. U1391(b) and (C) and 1395(a), aiid Section 309(b) of the
Act, 33 U.s.c. 1319(b) because South Point Ethanol (hereinafter
‘SPE”) is physically located within this district and the
violations arose within this district.
3. Authority to bring this action on behalf of the
United States is vested in the Department of Justice pursuant to
Section 506 of the Act, 33 U.S.C. §1356, and 28 u.s.c. §516.
4. Notice of this action has been given to the State
of Ohio, as required by Section 309(b) of the Act, 33 U.S.C.
§1319(b).
III.
DEFENDANTS
5. SPE is a joint venture partnership formed by four
partners in 1981. The partners are Ashland Ethanol, Inc., Ohio
Farm Bureau, Inc., Publicker Gasohol, Inc., and UGI Ethanol
Corporation. SPE engages in the business of p oducjrtg fuel-grade
ethanol and distillers’ dried grains with solubles (“DDGS’) from
corn.
a
6. Th. four partners are jointly and severally liable
for the acts of their joint venture.

-------
-3
7. SPE is located within the State of Ohio. It
operates wastewater treatment plants at its manufacturing
facility in South Point, Ohio. One wastewater treatment plant
(the ‘industrial plant’) treats industrial process vastewater and
discharges pollutants through Outfall ooi to the Ohio River.
8. The second wastewater treatment plant (the
‘sanitary plant’) treated the sever water generated by the
plant’s workforce and discharged pollutants through Outfall .0 .02
to the Ohio River. Additionally, untreated cooling water is
discharged through Outfall 003 to the Ohio River.
9. SPE’s Outfal].s 001, 002, and 003 are each regulated
‘point source(s)’ within the meaning of Section 502(14) of the
Act, 33 U.S.C. §1362(14).
I v.
GENERAL ALLEGATIONS
10. The Ohio River is a ‘navigable water(s)’ as
defined by Section 502(7) of the Act, 33 U.S.C. 41362(7).
Defendants are ‘persons’ as defined by Section 502(5) of the Act,
33 U.s.c. §1362(5).
11. Section 301(a) of the Act, 33 U.s.c. 41311(a),
prohibits the discharg. of any pollutant by an per on, except,
inter in complianc. with a NPDES permit issued pursuant to
Section 402 of the Act, 33 U.S.C. §1342. -
12. On July 14, 1983, the State of Ohio Environmental
Protection Agency (‘OEPA’) issued NPDES Permit No. 0H0076392
(attached hereto as Exhibit A) to SPE. Th&I4PDES permit

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—4—
authorized SPE to discharge from its facility to the Ohio River
through Outfalls 001 through 006 in accordance with the terms and
conditions set forth in the permit.
13. The terms and conditions of SPE’s permit contain
limitations on the pollutants discharged in the effluent from
SPE’s wastewater treatment plants. These limitations apply,
inter to Biochemical Oxygen Demand (DOD), Total Suspended
Solids (TSS), Feca]. Coliform Bacteria, Total Residual Chlorine,
and pH, each of which is a pollutant as defined in Section 502(6)
of the Act, 33 U.S.C. §1362(6).
14. The permit requires SPE to submit monthly
operating reports (‘HORs’) to OEPA (See Exhibit A attached
hereto, Permit No. 0H0076392, Part III, Section B) with
information concerning its discharges from the various outfalls.
V.
FIRST CLAIM FOR RELIE2
15. Paragraphs i through 14 are incorporated herein as
though set forth in full.
16. Th. final effluent 14.aitatjons contained in Part
I, Section A—i, of SPE’. permit limit the discharge of DOD 5 and
TSS at Outfall 001 in the following manner:
Discharae Limitations
Concentration Loading (kg/day)
30—day Daily 30-day ‘I Daily
DOD 5 272 408
TSS — 72 408

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—5—
17. The MORs submitted by SPE show frequent Violations
of these discharge limitations at Outfall 001. A chart of such
violations occurring between July 2.983 and September 1987 is
attached as Exhibit B and incorporated herein by reference.
18. The final effluent limitations contained in Part
I, Section A-i, of SPE’s permit limit tHe discharge of DOD 5 , TSS,
Total Residual Chlorine, and Fecal Coliform at Outfall. 002 in the
following manner:
Discharge Limitatjpn
Concentration Loading (kg/day)
30-day Daily 30—day Daily
DOD 5 30 45 0.80 1.2
TSS 30 45 0.80 1.2
Chlorine, Total 2.0 3.0 —
Residual
Fecal Coliform 200 400 — —
(#/ lOOme) (#/ lOOm.)
19. The final effluent limitations contained in Part
I, Section A—i, of SPE’s permit also require that the pH of the
wastewater discharged at Outfall 002 be not less than 6.0
standard units (S.U.) nor greater than 9.0 8.0. MORe submitted
by SPE show frequent violations of these discharge limitations at
Outfall 002. A chart of such violations occur ’ing etveen July
1983 and September 1987 is attached as Exhibit C and incorporated
herein by reference.
20. The final effluent limitations contained in Part
I, Section A—i, of SPE’s permit require that the pH of the
wastewater discharged at Outfall 003 b. not less than 6.0

-------
—6—
standard units (S.U.) nor greater than 9.0 S.U. The MORa
Submitted by SPE show violations of these discharge limitations
at Outfall 003. A chart of such violations occurring between
July 1983 and September 1987 is attached as Exhibit D and
incorporated herein by reference.
21. Each discharge in excess :of effluent limitations
by SPE and each of it. four partners, is a violation of a permit
condition or limitation implementing Section 301 of the Act, - 3
u.s.c. §1311, in a permit issued pursuant to Section 402 of the
Act, 33 U.s.c. §1342.
22. Pursuant to Sections 309(b) and Cd) of the Act, 33
U.S.C. §5 1319(b) and (d), as amended by P.L. 100—4, U.S. EPA may
commence a civil action for appropriat, relief, including civil
penaltie, net to exceed $25,000 per day of violation,, for any
violation of th. provision, of an NPDES permit, effective
February 4, 1987. Prior to February 4, 1987, the maximum civil
penalty was $10,000 per day of violation.
V I.
SECOND CLAIM FOR RELIEF
23. Paragraphs i through 22 ar. incorporated herein
as though set forth in full.
24. Ths terms and condition, of SPE’s NPDES permit
require that SPE submit to Ohio EPA monthly discharge monitoring
reports (“DMRs9. The DMRs are to summarize the monthly
monitoring results for specified discharge parameter,,

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-7—
25. Between January 1985 and February 1987, SPE failed
to report monitoring results for one or mors of its Permit
parameters on twenty-one occasions.
26. The failure of SPE, and each of its partners, to
report monitoring results is a violation of a permit Condition or
limitation, and thus a violation of Section 301(a) of the Act, 33
U.S.C. §1311(a). -
27. Pursuant to Sections 309(b) and (d) of the Act, 33
U.S.C. fl1319(b) and (d), as amended by P.L. 100-4, U.S. EPA may
commence a civil action for appropriate relief, including civil
penalties not to exceed $25,000 per day of violation, for any
violation of the provisions of an NPDES permit, effective
February 4, 1987. Prior to February 4, 1987, the maximum civil
penalty vas $10,000 per day of violation.
28. On information and belief, Plaintiff alleges that
Defendants are likely to continue to violate SPE’s NPDES permit
reporting requirements unless enjoined by an Order of this Court.
“II.
RELIEF REqUESTED
- WHEREFORE, Plaintiff United States of America prays
that:
1. Defendants be permanently enjoined from future
violations of the terms and conditions of SPE’s NPD permit No.
0H0076392, currently in effects
2. The Court assess Defendants a civil penalty of
$10,000 per day for each day of violation of SPE’s NPDES permit
and the Act occurring prior to February 4, 1987, and $25,000 per
day for each day of violation occurring thereafter;

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—8—
3. Defendants be ordered to pay the United States’
costs and disbursements in this action; and
4. That the Court grant such further relief as it
deems just and proper.
R t 7çu i
R ERT7. MARZULLA
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
422
REDERICj( S. PHILLIPS
Attorney, Environmental
Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washjnqto D.C. 20044
(202) 633 _g 415
D. XI HAEL cR.tTzs
United States Attorney
Southern District of Ohio
By:
Assistant United tatea Attorney
Southern District of Ohio
220 USPO & Courthous.
5th & Walnut Streets
Cincinnati, Ohio 4520
(513) 684—3711

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
UNITED STATES OF AMERICA, )
)
Plaintiff,
)
v.
)
)
WHEELING-PITTSBURGH STEEL ) CIVIL ACTION NO.
CORPORATION,
Defendant.
COMPLAINT
The United States of America, at the request of the
Administrator of the United States Environmental Protection Agency
(hereafter “EPA”), alleges as follows:
INTRODUCTION
1. This is a civil action pursuant to Section 309(b)
and (d) of the Clean Water Act (“Act”), 33 U.S.C. { 1319(b) and
(d), for injunctive relief and for assessment of a civil penalty
against Wheeling-Pittsburgh Steel Corporation (hereafter
“Defendant” or “Wheeling”). Plaintiff alleges that Defendant
discharged and continues to discharge pollutants in violation of
Section 301 of the Act, 33 U.S.C. { 1311, and certain terms and
conditions of a National Pollutant Discharge Elimination System
(“NPDES”) permits issued to Defendant by the Commonwealth of
Pennsylvania pursuant to Section 402 of the Act, 33 U.S.C. { 1342.
JURISDICTION AND VENUE

-------
2. This court has jurisdiction over this action
pursuant to 28 U.S.C. {{ 1331, 1345 and 1355 and Section 309(b) of
the Act, 33 U.S.C. { 1319(b). Notice of the commencement of this
action has been given to the Commonwealth of Pennsylvania.
3. Venue is proper in this judicial district pursuant
to 28 U.S.C. { 1391 and Section 309(b) of the Act, 33 U.S.C. {
1319(b).
DEFENDANT
4. The Defendant, Wheeling, is a publicly held
corporation incorporated in Delaware, with its headquarters in
Wheeling, West Virginia, and at all times relevant hereto operated
and is operating a plant located in Allenport, Pennsylvania, which
processes hot rolled steel coils for cold reduced flat rolled
products. Wheeling discharged and discharges pollutants within the
meaning of Section 502(12) of the Act, 33 U.S.C. { 1362(12), from
its Allenport plant into the Monongahela River, which are navigable
waters as defined by Section 502(7) of the Act, 33 U.S.C. {
1362(7).
5. Defendant is a “person” as defined by Section 502 of
the Act, 33 U.S.C. ( 1362(5).
BACKGROUND
6. Section 301(a) of the Act, 33 U.S.C. { 1311(a),
prohibits the discharge of pollutants except in compliance with
that section and with other provisions of the Act, including
Sections 301(b) and 402, 33 U.S.C. {{ 1311(b) and 1342, and the
regulations promulgated thereunder. Section 402 of the Act
2

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established the NPDES system for the permitting of discharges of
pollutants.
7. EPA, pursuant to Section 402 of the Act, 33 U.S.C.
{ 1342, issued to Wheeling NPDES permit No. PA0001562 (“Permit I”)
effective August 30, 1974, with an expiration date of August 30,
1979. On June 22, 1978, the Pennsylvania Department of
Environmental Resources (“PaDER”), as authorized by EPA pursuant to
Section 402(b) of the Act, 33 U.S.C. { 1342(b), assumed primary
responsibility for the administration and enforcement of Wheeling’s
NPDES permit. Permit I expired on August 30, 1979 because Wheeling
failed to submit an application for a new NPDES permit to PaDER.
8. On September 30, 1985, PaDER issued to Wheeling a
second NPDES permit No. PA0001562 (“Permit II”), effective on the
date of issuance with an expiration date of September 30, 1990.
Permit II authorized Defendant to discharge pollutants, within
certain effluent limitations, from its plant at 14 named outfalls
into the Monongahela River subject to certain terms and conditions,
including effluent limitations for specified pollutants such as pM,
temperature, oil and grease, and suspended solids. Permit 11
prescribed certain monitoring, reporting, and management
requirements, including a requirement that Wheeling keep daily
Discharge Monitoring Reports (“DMRs”).
3

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9. On November 14, 1989, EPA conducted a compliance
evaluation inspection of Defendant’s plant. This inspection found
that Defendant’s plant was operated and maintained in a condition
of neglect in violation of the terms of Permit II.
10. Based on Defendant’s Discharge Monitoring Reports,
since September, 1985, Defendant has had numerous and continuing
discharges in excess of effluent limitation for such pollutants as
oil and grease, suspended solids, total iron, pH, temperature,
naphtha lene, and tetrachioroethylene.
11. Defendant has had repeated episodes of leakage from
its sedimentation tank into the Monongahela River constituting
unpermitted discharges of suspended solids and pH.
12. Sections 309(a) (3) and 309(b) of the Act, 33 U.S.C.
{{ l319(a)(3) and 1319(b), provide for the commencement of an
action for appropriate relief, including permanent or temporary
injunctions, when any person is in violation of Section 301 or 308
of the Act, or any permit condition or limitation implementing such
sections in a permit issued under Section 402 of the Act. Sections
309(b) and 309(d) of the Act, as amended by Section 313(b) of the
Water Quality Act of 1987, 33 U.S.C. {{ 1319(b) and 1319(d),
provide that any person who violates Sections 301 or 308 of the
Act, or any permit condition or limitation implementing such
sections, shall be subject to a civil penalty not to exceed $10,000
per day for each violation occurring before February 4, 1987, and
$25,000 per day for each violation occurring on or after February
4, 1987.
4

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FIRST CLAIM FOR RELIEF
13. The allegations set forth in Paragraphs 1 through
12, inclusive, are realleged and incorporated herein by reference.
14. Defendant at numerous times since September, 1985
has discharged pollutants through point source(s) into navigable
waters in excess of the effluent limitations of Permit II,
including, but not limited to excess discharges of oil and grease,
suspended solids, iron, napthalene, and tetrachloroethy].ene, as
well as excess pH and temperature violations.
15. Defendant’s discharges of pollutants in excess of
levels authorized by Permit II violated Section 301 of the Act, 33
U.S.C. { 1311, and permit conditions or limitations implementing
Section 301 of the Act in the above permit issued by PaDER pursuant
to Section 402 of the Act, 33 U.S.C. { 1342.
16. Unless the Defendant is enjoined by Order of this
Court, such violations will continue. Pursuant to Section 309 of
the Act, Defendant is also liable for civil penalties of up to
$10,000 per day for each violation which occurred before February
4, 1987 and $25,000 per day for each violation which occurred on or
after February 4, 1987.
5

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SECOND CLAIM FOR RELIEF
17. The allegations set forth in Paragraphs 1 through
16, inclusive, are realleged and incorporated herein by reference.
18. As a result of Defendant’s failure to properly
operate and maintain its Allenport plant, there have been repeated
episodes of leakage from Defendant’s sedimentation tank into the
Monongahela River which leakage constitutes unpermitted discharges
of suspended solids and pH requirements.
19. Defendant’s unpermitted discharges from its
sedimentation tank constitute violations of Section 308 of the Act,
33 U.S.C. { 1318, and permit conditions or limitations implementing
Sections 301 and 308 of the Act in the permit issued by PaDER
pursuant to Section 402 of the Act, 33 U.S.C. { 1342.
20. Unless enjoined by Order of this Court, the
unpermitted discharges will continue. Pursuant to Section 309 of
the Act, the Defendant is also liable for civil penalties of up to
$10,000 per day for each violation occurring before February 4,
1987, and $25,000 per day for each violation occurring on or after
February 4, 1987.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, United States of America, prays
that:
1. Defendant be permanently enjoined from any and all
future violations of the Act and from any discharges of pollutants
except as expressly authorized by a permit issued pursuant to
Section 402 of the Act, 33 U.S.C. { 1342;
6

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2. Defendant be ordered to comply with the terms and
conditions of its NPDES Permit No. PA0001562, and the Act;
3. Defendant be ordered to undertake an expedited
program, subject to EPA approval, to bring its plant into
compliance with its NPDES permit No. PA0001562, and the Act;
4. Defendant be assessed, pursuant to Section 309(d)
of the Act, 33 U.S.C. { 1319(d), a civil penalty not to exceed ten
thousand dollars ($10,000) for each day of each violation which
occurred before February 4, 1987, and a penalty not to exceed
twenty five thousand dollars ($25,000) for each day of each
violation which occurred on or after February 4, 1987, up to the
date of judgment herein, of Section 301 of the Act, 33 U.S.C. {
1311, and of any permit limitation or condition implementing
Section 301 of the Clean Water Act.
5. Plaintiff be awarded the costs and disbursements of
this action; and
6. This Court grant such other relief as it deems just
and proper.
Respectfully submitted,
RICHARD STEWART
Assistant Attorney General
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
7

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GARY J. FISHER
LYNN PENMAN
Trial Attorneys
Environmental Enforcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
(202) 514—4091
THOMAS W. CORBETT, JR.
United States Attorney
Western District of Pennsylvania
By: ___________________________________
Assistant United States Attorney
633 United States Post Office
and Courthouse
7th and Grant Streets
Pittsburgh, PA 15219
OF COUNSEL :
YVETTE ROUNDTREE
Office of Regional Counsel
U.S. Environmental Protection Agency
841 Chestnut Building
Philadelphia, Pennsylvania 19107
8

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CIVIL ACTION NO. 90-
UNITED STATES OF AMERICA,
Plaintiff, ) . 1->’- f
THE WESTERN SUCA.R COMPANY, ) (
Defendant. ) 7 JZ/ ( / O 1 ’(OTJ
COMPLAINT
The United States of America (“United States”), at the
request of the Administrator (“Administrator”) of the United
States Environmental Protection Agency (“EPA”), states as
follows:
PRELIMINARY STATEMENT
1. This is a civil action under Section 309(b) and (d)
of the Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977 and the Water Quality Act of 1987 (“Clean
Water Act” or the “Act”), for a permanent injunction and the
assessment of civil penalties against The Western Sugar Company
(“Western”) as a result of Western’s discharges of pollutants in
violation of Section 301 of the Act, 33 U.S.C. § 1311, and the
conditions and limitations of National Pollutant Discharge
Elimination System (“NPDES”) Permit Number MT-000028]. at
Western’s sugar beet processing facility in Billings, Montana.
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject r atter
of this action under 28 U.S.C. § 1345 and 1355, and Section
309(b) of the Act, 33 U.S.C. § 1319(b).
3. Notice of commencement of this action has been
given to the State of Montana.
4. Venue is proper in this judicial district pursuant
to 28 U.S.C. §S 1391(b) and (C) and 1395(a), and Section 309(b)
of the Act, 33 U.S.C. § 1319(b).

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DEFE DA IT
5. Western is a corporation organized under the laws
of the State of Delaware and headquartered in Denver, Colorado.
6. Western is the owner and operator of a sugar beet
processing facility in Billings, Montana (the “facility’).
QENE AL ALLEGATIONS
7. Section 301(a) of the Act, 33 U.S.C. § 1311(a),
prohibits the discharge of pollutants into the navigable waters
of the United States except in compliance with certain sections
of the Clean Water Act, including Section 402 of the Act, 33
U.S.C. § 1342.
8. Section 402(a) of the Act, 33 U.S.C. § 1342(a),
provides that the Administrator may issue permits to “persons”
under the National Pollutant Discharge Elimination System
(“NPDES”) for the discharge of any pollutant into the waters of
the United States upon specific terms and conditions that the
Administrator may prescribe.
9. Section 402(b) of the Act, 33 U.S.C. § 1342(b),
provides that the Administrator may authorize a State to operate
a NPDES program in compliance with the requirements of the Act.
10. Pursuant to Section 402(b) of the Act, 33 U.S.C.
§ 1342(b), the State of Montana was granted authority by the
Administrator to operate a NPDES permit program in compliance
with the requirements of the Act.
11. Pursuant to Section 402(a) of the Act, 33 U.S.C.
§ 1342(a), the State of Montana has issued NPDES Permit Number
MT—0000281 to Western.
12. NPDES Permit Number MT-0000281 authorizes Western
to discharge pollutants from the facility into the Yellowstone
River via the Yegen Drain, subject to specific terms and
conditions.
13. Section 309(b) and Cd) of the Act, 33 U.S.C. §
1319(b) and (d), provides that the Administrator may bring a
civil action to obtain civil penalties or other appropriate
relief, including injunctive relief, against any person who
violates any condition or limitation which implements Section 301
of the Act, 33 U.S.C. § 1311. The February 4, 1987 amendments to
the Act increased the maximum civil penalty per violation under
Section 309(d) from $10,000 to $25,000, per day, per violation.
—2—

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CLIM FOR RELI!F
14. The United States herein incorporates by reference
the allegations of paragraphs 1 through 13 as if fully set forth
below.
15. Western is a “person” within the meaning of
Section 502(5) of the Act, 33 U.S.C. § 1362(5).
16. Since at least 1985, Western has discharged
“pollutants” within the meaning of Section 502(6) of the Act, 3)
U.S.C. § 1362(6), through a “point source” within the ean ng of
Section 502(14) of the Act, 33 U.S.C. § 1362(14), from the
facility into the Yellowstone River via the Yegen Drain, in
excess of the effluent limitations established by NPDES Per it
MT—000028 1.
17. The Yegen Drain and the Yellowstone River are
“navigable waters” within the meaning of Section 502(7) of the
Act, 33 U.S.C. § 1362(7).
18. Each discharge in excess of an effluent limitation
is a violation of NPDES Permit M’T—0000281.
19. Unless enjoined, Western’s violations of the Clean
Water Act will continue.
20. Pursuant to Section 309(b) and (d) of the Act, 33
U.S.C. § 1319(b) and (d), the United States is entitled to
injunctive relief and civil penalties not to exceed $10,000 per
day for each violation before February 4, 1987, and not to exceed
$25,000 per day for each violation on or after February 4, 1987,
of Section 301 of the Act, 33 U.S.C. § 1311.
WHEREFORE, Plaintiff, the United States of America,
requests that the Court enter judgment against defendant The
Western Sugar Company as follows:
A. Permanently enjoin Western from any and all ongoing
and future violations of the Clean Water Act and from discharging
pollutants except as expressly authorized by permit issued under
Section 402 of the Act, 33 U.S.C. § 1342;
B. Order Western to undertake an expedited program to
assess the environmental effects of its unlawful discharges of
pollutants and to comply with the terms and conditions of NPDES
Permit MT—0000281 currently in effect at its Billings, Montana
sugar beet processing facility;
C. Assess civil penalties against Western pursuant to
Section 309(d) of the Act, 33 U.S.C. § 1319(d), for each day of
Western’s violations of HPDES Permit MT-0000281 through the date
-3—

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of judg tent, in an amount not to exceed $10,000 per day of
violation prior to February 4, 1987, and $25,000 per day of
violation since February 4, 1987.
D. Award the United States its costs and expenses
incurred in this action; and
E. Grant the United States such other relief as this
Court deems proper.
Respectfully subrnitted,
R CHARD B. STEWART
Assistant Attorney General
Environment and Natural Resources
Division
United States Department of Justice
10th & Constitution Avenue, N.W.
Washington, D.C. 20530
J
MICHAEL D. MCINTYRE
Environmental Enforcement Section
United States Department of Justice
Box 7612. Ben Franklin Station
Washington, D.C. 20044
(202) 514—5508
MICHAEL J. NORTON
United States Attorney
District of Colorado
JERRY R. ATENCIO
Assistant United States Attorney
1200 Federal Building
Drawer 3615
Denver, Colorado 80294
(303) 844—1300
OF COUNSEL: -
MARION YODER
Assistant Regional Counsel
Environ enta1 Protection Agency, Region VIII
999 lath Street, Suite 1300
Denver, Colorado 80202
—4—

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ALAN MORRISSEY
Attorney-Advisor
U.S. Environnental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
—5—

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MAG DOC: CARIBE:CARIBE.COMPLAflIT DRAFT 2/20/91 10:25am
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED
STATES
OF AMERICA,
)
Plaintiff,
)
V.
)
CARIBE
TUNA,
INC.
Defendant.
)
)
)
COMPLAINT
The United States of America, at the request of and on
behalf of the Administrator of the United States Environmental
Protection Agency (“EPA”), alleges the following:
I.
Nature Of Action
1. This is a civil action brought pursuant to sections
309(b) and (d) of the Clean Water Act (“the Act”), 33 U.S.C. §S
1319(b) and (d), for injunctive relief and civil penalties against
Caribe Tuna, Inc. (“Caribe Tuna”) for its discharges of pollutants
in violation of section 301(a) of the Act, 33 U.S.C. § 1311(a), and
for its violations of certain terms and conditions of National
Pollutant Discharge Elimination System (“NPDES”) permits issued to
Caribe Tuna by EPA pursuant to section 402 of the Act, 33 U.S.C. §
1342.
II.
Jurisdiction and Venue
Civil Action No.
2. This Court has jurisdiction over the subject matter

-------
of this action and the parties pursuant to section 309(b) of the
Act, 33 U.S.C. § 1319(b), and 28 U.S.C. ss 1331, 1345 and 1355.
3. Venue is proper in this judicial district pursuant
to section 309(b) of the Act, 33 U.S.C. § 1319(b), and 28 U.S.C. S
1391(b) because Caribe Tuna is located, and the alleged violations
occurred, in this judicial district.
III.
General Allegations
4. Notice of the commencement of this action has been
I
provided to the Commonwealth of Puerto Rico in accordance with 33
U.S.C. § 1319(b).
5. Caribe Tuna is a corporation organized under the
laws of the State of Delaware and is authorized to do business in
Puerto Rico.
6. Caribe Tuna is a “person” within the meaning of
section 502(5) of the Act, 33 U.S.C. § 1362(5).
7. Caribe Tuna owned and operated at all relevant
times, and continues to own and operate, a processing and canning
facility which produces Three Diamond Brand Tuna Fish, cat food and
fishmeal as described below.
8. The Caribe facility is located at the Avenue
Santiago de los Caballeros, Km. 3.7, in Playa de Ponce, Ponce,
Puerto Rico. This facility discharged at all relevant times, and
continues to discharge, wastewater and other “pollutants” within
the meaning of section 502(6) of the Act, 33 U.S.C. § 1362(6), from
a “point source” within the meaning of section 502(14) of the Act,
33 U.S.C. § 1362(14), into Ponce Bay. Ponce Bay is a “navigable
water” within the meaning of section 502(7) of the Act, 33 U.S.C.
—2—

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§ 1362(7). Discharges from the facility into Ponce Bay are
“discharges of pollutants” within the meaning of sections 301(a)
and 502(12) of the Act, 33 U.S.C. SS 1311(a) and 1362(12).
9. Section 301(a) of the Act, 33 U.S.C. § 1311(a),
prohibits the discharge of any pollutant except in compliance with
the requirements of that section and as authorized by and in
compliance with an NPDES permit issued pursuant to the permit-
issuing authority contained in section 402 of the Act, 33 U.S.C. S
1342.
10. Under section 402(a) of the Act, 33 U.S.C.
S 1342(a), the Administrator of the EPA (“Administrator”) may issue
an NPDES permit that authorizes the discharge of pollutants
directly into navigable waters of the United States, but only upon
compliance by the permit holder with the applicable requirements of
section 301 of the Act, 33 U.S.C. § 1311, and such other conditions
as the Administrator determines are necessary to carry out the
provisions of the Act.
11. Pursuant to section 402(a) of the Act, 33 U.S.C.
§ 1342(a), EPA issued NPDES Permit No. PR0021105 (the “Permit”) to
Caribe Tuna, which permit became effective on December 1, 1986.
The Permit, which expires on November 30, 1991, authorizes Caribe
Tuna to discharge pollutants from the facility, subject to certain
effluent limitations and other conditions. A true and correct copy
of the Permit is attached to this Complaint as Exhibit A.
12. Sections 309(a)(3), (b) and (d) of the Act, 33
U.S.C. §S 1319(a)(3), (b) and (d), authorize the Administrator of
EPA to commence a civil action for injunctive relief and for civil
—3—

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penalties for each violation of section 301 of the Act, 33 U.s.c.
§ 1311, or any permit condition or limitation implementing, inter
aija , section 301 of the Act, 33 U.S.C. S 1311, and contained in a
permit issued under section 402 of the Act, 33 U.S.C. S 1342.
Iv.
First Claim for Relief
Exceeding Effluent Limitations
13. Paragraphs 1 through 12 are realleged and
incorporated herein.
14. The Permit, which implements section 301 of the Act,
33 U.S.C. § 1311, sets forth specific effluent limitations,
including limitations for color, dissolved oxygen, barium, cadmium,
silver, selenium, and total dissolved solids.
15. At numerous times since December 1, 1986, Caribe
Tuna discharged pollutants, including, inter alia , barium, cadmium,
silver, selenium and total dissolved solids from the facility into
navigable waters of the United States in excess of the effluent
limitations set forth in the Permit.
16. The discharges described in paragraph 15 violated
section 301 of the Act, 33 U.S.C. § 1311, and the Permit conditions
or limitations implementing section 301 of the Act. Caribe Tuna is
liable for the imposition of injunctive relief and the assessment
of civil penalties not to exceed ten thousand dollars ($10,000) per
day f or each such violation occurring prior to February 4, 1987,
and for civil penalties not to exceed twenty-five thousand dollars
($25,000) per day for each such violation occurring on or after
February 4, 1987.
17. Upon information and belief, Caribe Tuna will
—4—

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continue to discharge pollutants in excess of effluent limitations
in violation of 33 U.S.C. S 1311 and the terms and conditions of
the Permit unless enjoined by an Order of this Court.
V.
Second Claim for Relief
Omitting Reporting for Required Parameters
18. Paragraphs 1 through 12, inclusive, of this
complaint are hereby realleged and incorporated herein by
reference.
19. The Permit requires Caribe Tuna to submit discharge
monitoring reports (“DMRs”) to EPA. The permit further requires
that the DMRs include test results for numerous pollutant
parameters as specified in the Permit.
20. On numerous occasions since December 1, 1986, Caribe
Tuna has violated the conditions of the Permit by failing to report
in its DMRs test results for parameters required by the Permit.
These omitted parameters include, inter alia , dissolved oxygen,
fecal coliforin, total coliform, temperature, and turbidity.
21. The reporting deficiencies described in the
preceding paragraph constitute violations of Section 301 of the
Act, 33 U.S.C. § 1311, and the Permit conditions or limitations
implementing Section 301 of the Act.
V I.
Third Claim for Relief
Failing to Monitor with Reauired Freauency
22. Paragraphs 1 through 12, inclusive, of this
complaint are hereby realleged and incorporated herein by
reference.
—5—

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23. The Permit sets forth specific monitoring frequency
requirements for each effluent governed by the Permit.
24. on numerous occasions since December 1, 1986, Caribe
Tuna has violated the conditions of the Permit by failing to test
for specified parameters with the frequency required by the Permit.
The parameters not tested with the frequency required by the permit
include, pH, dissolved oxygen, and total residual chlorine.
25. The failures to test with the frequency required by
the permit, as described in the preceding paragraph, constitute
violations of Section 301 of the Act, 33 U.S.C. § 1311, and the
Permit conditions or limitations implementing Section 301 of the
Act.
VII.
Prayer for Relief
WHEREFORE, United States of America prays that:
1. Caribe Tuna be permanently enjoined, pursuant to
section 309(b) of the Act, 33 U.S.C. S 1319(b), from any and all
future violations of the Act and from discharges of pollutants
except as authorized by permit under 33 U.S.C. S 1342.
2. Caribe Tuna be ordered to comply with the terms and
conditions of its NPDES Permit No. PROO211O5, as effective.
3. Caribe Tuna be ordered to develop a plan and
schedule designed to bring the facility into compliance with the
terms and conditions of the Permit, as effective, and the Act.
4. Caribe Tuna be assessed, pursuant to section 309(d)
of the Act, 33 U.S.C. § 1319(d), a civil penalty not to exceed ten
thousand dollars ($10,000) per day for each violation of section
301 of the Act, 33 U.S.C. § 1311, or of its NPDES Permit No.
—6—

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PR0021105, occurring prior to February 4, 1987; and a civil penalty
not to exceed twenty-five thousand dollars ($25,000) per day for
each violation of the Act, of said Permit occurring on or after
February 4, 1987, as effective up to the date of judgment herein.
5. Caribe Tuna be ordered to reimburse the United
States for the costs and disbursements of this action; and
6. This Court grant the United States such other and
further relief as it deems just and proper.
Respectfully submitted,
RICHARD B. STEWART
Assistant Attorney General
Environment & Natural Resources Division
U.S. Department of Justice
MARK A. GALLAGHER
Trial Attorney
Environmental Enforcement Section
Environment & Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
SYLVIA CARENO
Assistant United States Attorney
District of Puerto Rico
Federal Office Building, Room 101
Carlos E. Chardon Avenue
Hato Rey, Puerto Rico 00918
—7—

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OF COUNSEL:
Diane T. Gomes, Esq.
Office of Regional Counsel
U.S. Environmental Protection Agency
Region II
26 Federal Plaza
New York, New York 10278
Dated: February 20, 1991
—8—

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Charles H. Turner
United States Attorney
District of Oregon ____________
888 S.W. 5th Ave.
Suite 1000
Portland, OR 97204—2024
(503) 727—1000
OSB 66127
Richard B. Stewart
U.S. Department of Justice
Assistant Attorney General
Environment and Natural Resources DjVis .o
Angela O’Connell
Trial Attorney
Environment and Natural Resources Division
10th and Pennsylvania Ave. N.W.
Washington, D.C. 20530
(202) 514—5315
V.
) _______________________
TILLAMOOK COUNTY CREAMERY )
ASSOCIATION, INC )
)
Plaintiff, the United States of America (“United
States”), by authority of the Attorney General and at the request
of the Administrator of the United States Environmental
Protection Agency (“EPA”), alleges that:
Endorsed: aL, (c 11
Filed —
DONALD N. CINNAMONQ. CLE
By_
oeQ9Ey
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED. STATES OF AMERICA,
Plaintiff,
)
)
)
)
CIVIL ACTION NO. g 1 _ I ( Uii
COMPLAINT, Clean Water
Act, 33 U.S.C. § 1251 et. seg
COMPLAINT - Page 1

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INTRODUCTIQ
1. This is a civil action seeking injunctive relief
and civil penalties for Violations of Section 301(a) of the Clean
Water Act (NACtN), 33 U.s.c. § 1 311(a), brought pursuant to
section 309(d) of the Act, 33 U.s.C. § 1319(d).
J1J1RISDICTIq
2. This Court has jurisdjctjo over this action under
Sections 309(a), (b) and (d) of the Act, 33 U.S.C. § 1 319(a),
(b) and (d) and 28 U.S.C. § 1345 and 1355.
3. Authority to bring this action is vested in the
United States Department of Justice by 28 U.S.C. § 516 and 519,
and 33 U.S.C. § 1366. Notice of the commencement of this action
has been given to the State of Oregon pursuant to 33 U.S.C.
§ 1319(b).
4. Venue is proper in the District of Oregon under 28
U.S.C. § 1391(b) and (C) and 33 U.S.c. §1319(b) and (e) because
defendant is an Oregon corporation with its principal place of
business in Oregon.
DEFENDM1
5. Defendant Tillamook County Creamery Association,
Inc. (TccAN) is an Oregon Corporation with its principal place
of business in Tillaxnoojc, Oregon.
COMPLAINT - Page 2

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6. TCCA is a “person” within the meaning of Section
502(5) of the Act, 33 U.S.C. § 1362(5).
THE CLEAN WATER ACT REGULATORY SCHEME
7. Section 301(a) of the Clean Water Act, 33 u.s.c. §
1311(a), prohibits the discharge of pollutants into the waters of
the United States by any person except in accordance with Section
301 of the Act, and as authorized by and in compliance with
certain other Sections of the Act, including Section 402, 33
U.S.C. § 1342.
8. Under Section 402(a) of the Act, 33 U.S.c.
§ 1342(a), the Administrator of EPA may issue National Pollutant
Discharge Elimination System (NPDES) permits which authorize the
discharge of pollutants into waters of the United States, subject
to the conditions and limitations set forth in such permits.
9. Effluent limitations are among the conditions set
forth in NPDES permits issued under Section 402(a) of the Act, 33
U.S.C. § 1342(a). Effluent limitations, as defined in Section
502(11.) of the Act, 33 U.S.C. § 1362(11), are restrictions on the
quantity, rate and concentration of chemical, physical,
biological and other constituents of wastewater discharges.
10. NPDES permits also prescribe various monitoring,
reporting and management requirements.
11. Sections 309(b) and (d) of the Act, 33 U.S.C.
§ 1319 (b) and (d), provide for commencement of actions for
injunctive relief and/or civil penalties for violations of
COMPLAINT - Page 3

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Sections 301 and 402 of the Act, 33 U.S.C. § 1311 and 1342,
including the conditions and limitations of NPDES permits, and
for violation of administrative orders issiied under Section
309(a) of the Act. Civil penalties are not to exceed $25,000 per
day for each violation occurring on or after February 4, 1987.
FACTUAL ALLEGATIONS
12. TCCA is a cheese and dairy products cooperative
with approximately 200 members that owns and operates a creamery
near Tillamook, Oregon. This creamery processes fluid milk and
manufactures natural cheddar cheese and butter. It also serves
as a retail outlet for cheese and wholesales feed and whey. TCCA
operates a wholesale dairy route, a visitors center, and a motel
in addition to its manufacturing and sales activities.
13. The creamery is located on the Wilson River. The
Wilson River empties into Tillamook Bay, which extends off of the
Pacific Ocean. The creamery discharges its wastes into the
Wilson River at a point 1.7 miles from Tillamook Bay.
14. TCCA operates a wastewater treatment plant at its
Tillamook, Oregon, creamery. The plant currently accepts process
wastes from the creamery and the cheese factory as well as
sanitary wastes from the visitors center and the motel adjacent
to the creamery.
15. The TCCA wastewater treatment plant discharges
into the Wilson River under National Pollution Discharge
Elimination System (“NPDES’) permit number OR-0000l4-1, which was
COMPLAINT - Page 4

-------
issued by the Oregon Department of Environmental Quality (“ODEQ)
on July 21, 1988. The United States delegated authority to ODEQ
to issue NPDES permits in 1973 under the authority of 33 U.s.c.
§ 1342(b). TCCA has held a NPDES permit since 1973. The current
permit expires on December 31, 1991.
16. The current NPDES permit authorizes the discharge
of treated process and sani.tary wastes into the Wilson River 1.7
miles upstream from Tillamook.Bay. The permitestabljshes among
other things, specific limits on effluent content. TCCA is
required to ensure that the biochemical oxygen demand ( ‘ BOD),
and total suspended solids (“TSS”) among other parameters of its
wastewater, do not exceed specific maximum values. In addition,
TCCA’s permit requires TCCA to perform daily monitoring of its
wastewater and to summarize all momitoring results on a Discharge
Monitoring Report (“DMR”) and submit the D to ODEQ on a monthly
basis to verify compliance with the NPDES permit.
17. On July 23 and 24, 1990, EPA conducted an
inspection of the TCCA creamery. EPA inspectors took wastewater
samples, observed TCCA sampling procedures and equipment, and
reviewed TCCA’s wastewater sampling records. During the course
of the investigation, EPA documented numerous past and present
violations of the permit.
18. DMRs submitted by TCCA document numerous
violations of the monthly and daily average effluent limits set
forth in Schedule A.l.a. of the permit for at least 10 months in
1989 and 1990. The DMRs show that the creamery has violated both
COMPL IN’r - Page 5

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monthly and daily BOD limits at least 7 times, and has vio1ate
monthly TSS limits at least 7 times, and daily TSS limits on at
least 9 days in 1988, 1989, and 1990.
19. In violation of General Condition Section B.1. of
the NPDES permit, TCCA failed in 18 months in 1989 and 1990, to
operate and maintain all treatment and control facilities and
systems properly. TCCA has not provided adequate funding,
3I,
sufficient operator staffing and training, adequate laboratory
and process controls, or appropriate quality assurance procedures
as required under General Condition Section B.].. of the permit.
This constitutes 18 violations of the permit.
20. Due to deficient sampling techniques, in at least
18 months TCCA failed to take samples that were representative of
the volume and nature of the monitored discharge as required
under General Condition C.]. of the permit which constitutes at
least 18 violations of the permit.
21. A review of the laboratory records showed that in
at least 18 months TCCA failed to conduct SOD monitoring
according to test procedures approved under 40 CFR part 136 as
required which constitutes at least 18 violations of General
Condition C.3. of the permit.
22. General Condition C.6. of the permit requires that
the results of any additional monitoring of any pollutant be
included in the calculations and reporting of the data on the
D? . Records show that TCCA failed to include additional
COMPLAINT - Page 6

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monitoring during at least 18 months which Constitutes at least
18 violations of General Condition C.3.
23. A review of the underlying data used to prepare
the D? s showed that on at least 18 occasions defendant had not
properly reported all BOO and TSS results as required by General
Condition C.7 of the permit. Rather than utilizing an arithmetic
mean for calculating all valid BOD and TSS measurements,
defendant routinely selected only the most favorable numbers for
inclusion in the DMRs. TCCA therefore reported artificially low
BOO and TSS counts for its wastewater discharge. This failure to
record data properly in the D s makes it likely that TCCA
committed more discharge violations than those reported on the
DMRs. TCCA’g failure to report all data Constitutes at least 18
violations of General Condition C.7.
24. General Condition C.9. of the permit requires
records of monitoring information to include specific items to
demonstrate complete and actual testing and reporting. During at
least 18 months, TCCA failed to record the required monitoring
information which constitutes 18 violations of the permit.
FIRST CLAIM FOR RELIEF
25. Paragraphs i through 24 are realleged and
incorporated herein by reference.
26. For violations of the monthly and daily average
effluent limits set forth in Schedule A.1.a. of the permit for at
least 10 months in 1989 and 1990, Defendant is liable for civil
COMPLAINT - Page 7

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penalties not to exceed $25,000 per day for each v1o1 tj 0
pursuant to Section 309(d) of the Act, 33 U.S.C. § 1319(d), and
for such injunctive relief as may be appropriate.
SECOND CLAIM FOR RELIEF
27. Paragraphs 1 through 24 are realleged and
incorporated herein by reference.
28. By failing to provide adequate funding, sufficient
operator staffing and training, adequate laboratory and process
controls, or appropriate quality assurance procedures, in
violation of General Condition Section s.i. of the NPDES permit,
defendant is liable for civil penalties not to exceed $25,000 per
day for each violation pursuant to Section 309(d) of the Act, 33
U.S.C. § 1319(d), and for such injunctive relief as may be
appropriate.
THIRD CLAIM FOR RELIEZ
29. Paragraphs i through 24 are realleged and
incorporated herein by reference.
30 By failing in at least 18 months to take samples
that were representative of the volume and nature of the
monitored discharge as required under General Condition C.]. of
the permit, defendant is liable for civil penalties not to exceed
$25,000 per day for each violation pursuant to Section 309(d) of
the Act, 33 U.S.C. § 1319(d), and for such injunctive relief as
may be appropriate.
COMPLAIWr - Page 8

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FOURTH CLAIM FOR RELIES
31. Paragraphs 1 through 24 are realleged and
incorporated herein by reference.
32. For failure to Conduct SOD monitoring according to
test procedures approved under 40 CFR part 136 as required by
General Condition C.3. of the permit, defendant is liable for
civil penalties not to exceed $25,000 for each violation pursuant
to Section 309(d) of the Act, 33 U.S.c. § 1319(d), and for such
injunctive relief as may be appropriate.
FIFTH CLAIM FOR RELIEF
33. Paragraphs 1 through 24 are realleged and
incorporated herein by reference.
34. For violating General Condition C.6. of the permit
which requires that the results of any additional monitoring of
any pollutant be included in the calculations and reporting of
the data on the D , defendant is liable for civil penalties not
to exceed $25,000 for each violation pursuant to Section 309(d)
of the Act, 33 U.S.C. § 1319(d), and for such injunctive relief
as may be appropriate.
SIXTH CLAIM FOR RELIEF
35. Paragraphs 1 through 24 are realleged and
incorporated herein by reference.
36. For failing to report all SOD and TSS results as
required by General Condition C.7 of the permit, and routinely
COMPLAINT - Page 9 -

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selecting only the most favorable numbers for flClU3j in the
DMRs, defendant is liable for civil penalties not to exceed
$25,000 for each violation pursuant to Section 309(d) of the Act,
33 U.s.c. § 1319(d), and for such injunctive relief as may be
appropriate.
SEVENTH CLAIM FOR RELIES
37. Paragraphs i through 24 are realleged and
incorporated herein by reference.
38. For violating General Condition C.9. of the permit
by failing to include specific items in the monitoring report to
demonstrate complete and actual testing and reporting, defendant
is liable for civil penalties not to exceed $25,000 for each
violation pursuant to Section 309(d) of the Act, 33 U.S.C.
§ 1319(d), and for such injunctive relief as may be appropriate.
PRAYER FOR RELIES
Based on the above allegations the United States requests
this Court to issue the following relief:
1. An injunction ordering TCCA to comply with the terms of
its NPDES permit.
2. A judgment imposing civil penalties on the Defendant
for past violations of Section 301 of the Act not to exceed
$25,000 per day per violation of its NPDES permit.
COMPLAINT - Page 10

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3. Such other relief as the Court considers appropriate.
DATED:
Respectfully submitted,
RICHARD B.. STEWART
U.S. Department of Justice
Assistant Attorney General
Environment and Natural Resources
Division
ANG F. O’CONNELL
Trial Attorney
Environment & Natural Resources Division
Environmental Enforcement Section
U.S. Department of Justice
P.O. Box 7611
Benjamin Franklin Station
Washington, D.C. 20044
CHARLES H. TURNER
United States Attorney
DISTRICT OF OREGON
888 S.W. Fifth Ave.
Suite 1000
Portland, Oregon 97204—2024
(503) 727—1000
COMPLAINT — Page 11

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OF COUNSEL:
Mark A. Ryan
Assistant Regional Counsel
United States Environmental Protection Agency
Region 10
1200 Sixth Avenue
Seattle, Washington 98101
COMPLAINT - Page 12

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA F f L E D
UNITED STATES OF AMERICA, )
) J i’ 8 O
Plaintiff, )
) Civil No W F1ED STTES :sT’ T CCuRT
V. ) DISTf CT
) By —
PROMISED LAND MINING, a ) I
General Partnership; JAMES L. )
MUNSELL; and WHITTEN H. ANDERSON,)
)
Defendants. )
_________________________________________________________________________ )
COMPLAINT
The United States of America, pursuant to the
authority of the Attorney General, and at the request of the
Administrator of the United States Environmental Protection
Agency, by’ its undersigned attorneys, alleges:
GENERAL ALLEGATIONS
1. This is a civil action brought under Section 309
of the Clean Water Act (“the Act”), 33 U.S.C. §1319, against
defendants Promised Land Mining, James L. Munsell and Whitten H.
Anderson for the discharge of pollutants into Butte Creek in
violation of Section 301 of the Act, 33 U.S.C. §1311. The
United States seeks the imposition of civil penalties and an
injunction directing defendants to comply with the Act and
all applicable terms and conditions of defendants’ National
Pollutant Discharge Elimination System of permit.
The United States alleges violations by and seeks
relief from Promised Land Mining, a general Partnership, and
James Munsell and Whicten Anderson, its general partners. In the

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—2-
alternative, it alleges violations arid seeks relief from
Munsel.1, the NPDES permit holder of the placer mine facility.
2. The United States Department of Justice is
authorized to bring this action pursuant to 28 U.S.C. § 5l6
arid 519.
3. The Court has jurisdiction of this action
pursuant to 28 U.S.C. §fl345 and 1355 and Section 309 of the
Act, 33 U.S.C. §1319.
4. Notice of the commencement of this action has
been given to the State of Alaska pursuant to 33 U.S.C.
§1319(b).
5. Defendants Promised Land Mining, Munsell and Anderson
operate a placer mine on Butte Creek near Livengood, Alaska,
within this judicial district.
6. The placer mining operation generates pollutants
which are discharged into Deadwood Creek.
7. Defendant Munsell is a resident of College,
Alaska, within this judicial district.
8. Defendant Anderson is a resident of Fairbanks,
Alaska, within this judicial. district.
9. On information and belief, defendant Promised
Land Mining is a general partnership whose principal place of
business is near Livengood, Alaska, within this judicial
district.

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—3—
10. On information and belief, defendants Munsell
and Anderson are partners in the Promised Land Mining
partnership.
11. Section 301(a) of’ the Act, 33 U.S.C. §1311(a),
prohibits the discharge of’ any pollutants into the waters of
the United States unless such discharges are authorized by
and in compliance with the terms and conditions of a National
Pollutant Discharge Elimination System (“NPDEs”) permit issued
pursuant to 33 U.S.C. §1342.
12. Defendants have discharged, at all times relevant
to this complaint, pollutants within the meaning of’ Section 502(6)
of the Act, 33 U.S.C. §1362(6), from effluent channels at the placer
mine facility Into Butte Creek.
13. Butte Creek is a navigable water as defined in
Section 502(7) of the Act, 33 U.S.C. §1362(7).
114. The effluent channels at defendants’ placer mine
facility are point sources within the meaning of Section 502(114)
of’ the Act, 33 U.S.C. §1362(114).
15. Defendant Promised Land Mining is a person
within the meaning of Section 502(5) of the Act, 33 U.S.C.
§1362(5).
16. Defendants Munse].]. and Anderson are persons
within the meaning of Section 502(5) of the Act, 33 U.S.C.
§1362(5).
17. On June 8, 19814, the United States Environmental
Protection Agency issued NPDES Permit No. AX—0036371 to
defendants Munsell and Promised Land Mining. On May 10,

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-4-
1985, U.S. EPA modified the permit. Both the 1984 permit and
and modified 1985 perrni authorized defendants to discharge
pollutants at specified levels from the placer mine into Butte
Creek.
FIRST CLAIM FOR RELIEF
18. The allegations of paragraphs 1-17 of the
complaint are incorporated by reference herein as if fully
alleged below.
19. On numerous occasions in 1984 and 1985, including
but not limited to August 8, 1984, July 9, 1985, and July 19,
1985, defendants Promised Land Mining, Munsell, and Anderson
discharged pollutants into Butte Creek in excess of the
limits established in Permit No. AK—0036374, in violation of
Sections 301 and 402 of the Act, 33 U.S.C. §fl311, 1342.
20. Under Section 309 of the Act, defendant Promised
Land Mining is liable, and defendants Munsell and Anderson, as
partners of Promised Land Mining, are jointly and severally
liable, for a civil penalty of $10,000 for each day of
violation of Section 301 of the Act, 33 U.S.C. §1311, and
all applicable permit requirements. Defendants are also
subject to injwictive relief requiring compliance with the
Act and applicable permit requirements.
SECOND CLAIM FOR RELIEF
21. The allegations of paragraphs 1-8, 11-14, 16-17
of the complaint are incorporated by reference herein as if
fully alleged below.

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-5-
22. In the aLternative, the United States alleges
that defendant unseL1, the NPDES permit hoLder, is liable for
the unlawful discharge of pollutants into Butte Creek.
23. On numerous occasions in 1984 and 1985,
including but not limited to August 8, 1984, July 9, 1985 and
July 19, 1985, defendant tlunsell discharged pollutants into
Butte Creek in excess of the limits established in Permit No.
AK-0036374, in violation of the permit conditions and Section
301 of the Act, 33 U.S.C. §1311.
24. Under Section 309 of the Act, defendant
Munsel]. is liable for a civil penalty of $10,000 for each day
defendant violated Section 301 of the Act, 33 U.S.C. §1311,
and all applicable permit requirements. Defendant is also
subject to injunctive relief requiring compliance with the
Act and the applicable permit requirements.
WHEREFORE, the United States of America respectfully
prays that this Court:
A. Enter a permanent injunction against defendants
requiring them to cease violating Section 301 of the Act, 33
U.S.C. §1311, and all applicable permit terms and conditions;
B. Enter a permanent injunction ordering defendants
to expeditiously complete such affirmative actions as are
necessary to ensure compliance with the Act and all applicable
permit terms and conditions;

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-6-
C. Impose civil pena].ties of $10,000 per violation
for each day defendants violated Section 301 of the Act, 33
U.S.C. §1311, and all applicable permit terms and conditions;
D. Award attorney fees and costs of this action
against defendants and in favor of the United States of America;
and
E. Grant such further relief as this Court may
deem just and proper.
Respectful su mi ted,

F. HENRY HABICHT [ I
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
MICHAEL R. SPANN
United States Attorney
District of Alaska
By: i7LIL.I/A
MARK W. SCHNEIDER, Attorney
Land and Natural Resources Division
U.S. Department of Justice
10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 633-2802
MALCOLM LOGAN
Assistant United aces Attorney
Federal Building & U.S. Courthouse
701 C Street
Anchorage, Alaska 99513
(907) 271-5071

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—7—
OF COUNSEL:
KERRILEE CALDWELL, ESQUIRE
Office of Regional CounseL
U.S. Environmental Protection Agency
Region X
1200 Sixth Avnue
Seattle, Washington 98101
MARGARET SILVER, ESQUIRE
U.S. Environmental Protection Agency
401 H Street, S.W.
Washington, D.C. 20460

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IL-B..L Discovery

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TED STATES OF N1ERI CA, )
)
Plaintiff,
CIVIL ACTION NO. C-l-89-012
V.
HONORABLE CARL B. RUBIN
ASHLAND ETHANOL, INC., et a l . , )
Defendants.
_________________________________________________________________________ )
PLAINTIFF’S INThiROGATORIES (FIRST SET )
Pursuant to Rule 33 of the Federal Rules of Civil
Procedure, plaintiff United States requests that defendants
anéwer, in writing and under oath, each of the interrogatories
set forth below, in accordance with the following Instructions
and Definitions, within thirty (30) days after service hereof.
INSTRUCTIONS
1. These interrogatories cover and relate to all
information and documents in tne possession, custody or control
of defendants, th eir parent and subsidiaries, all predecessors
and successors, and each present or former director, of ficer,
employee, agent, contractor, or attorney of any of the
foregoing.
2. Answer each interrogatory separately and fully, and
where an interrogatory is propounded in parts, answer each part
separately.
3. If you currently lack information to answer any
interrogatory, completely state:

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4’
10. Words used in the plural shall be taken to mean and
include the singular. Words used in the singular shall be
taken to mean and include the plural.
INTERROG TORI ES
1. Identify all persons known or believed by you or any
person acting on your behalf who has knowledge of any of the
facts giving rise to this action or your defenses. Describe
their knowledge of this action or your defenses, including all
affirmative defenses in the Complaint.
2. Identify, as to name, address and qualifications, all
persons you intend to call as expert witnesses at t ie trial of
this matter. State his or her opinions and the factual basis
for such opinions.

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5
3. State the factual basis of defendants’ contention in
its Second Affirmative Defense that the assessment of penalties
is barred by operation of the doctrine of laches. Identify all
documents which support such contention.
4. State the factual basis of defendants’ contention in
its Third Affirmative Defense that the assessment of penalties
is barred by the operation of the doctrine of estoppel.
Identify all documents which support such contention.

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6
5. State what actions South Point Ethanol took to work
with Ohio EPA to achieve a solution at the South Point Ethanol
plant following the expiration of the compliance schedule
imposed by the Ohio EPA in 1984 as alleged in the Sixth
Affirmative Defense.
6. State the factual basis for defendants’ contention in
its Tenth Affirmative Defense that the violations in the
complaint have not caused any harm to human health or the
environment. Identify any documents which support this
contention.

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7
7. State the factual basis of defendants’ contention in
its Tenth Affirmative Defense that the defendants have received
no significant economic benefit for any noncompliance.
Identify any documents with support this contention.
8. State the factual basis for defendants’ contention in
its Tenth Affirmative Defense that imposition of penalties
would threaten its existence. Identify any documents which
support this content ion.
Respectfu11 submitted,
D. Michael Crites
United States Attorney

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8
By:
Gerald
Assistant U.S. Attorney
220 U.S. Post Office/Courthouse
100 East Fifth Street
Cincinnati, Ohio 45202
(513) 684—3711
hi11i
Frederick
Environmental Enforcement Section
Land and N tura1 Resources Division
U.S. Department of Justice
Washington, D.C. 20530
(202) 633—5415
Arthur E.
Associate Regional Counsel
U.S. Environmental Protection
Agency, Region V
230 South Dearborn Street
Chicago, Illinois 60604
(312) 886—0697

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DiVISION
UNITED STATES OF AMERICA,
Plaintiff,
v. CIVIL ACTION NO. L-87-119-CA
HOLLY FARMS OF TEXAS, INC.
Defendant.
UNiTED STATES’ FIRST INTERROGATORIES
TO HOLLY FARMS OF TEXAS. INC.
Plaintiff, the United States of America, pursuant to Rule 33 of the
Federal Rules of Civil Procedure, serves the following interrogatories on Defendant,
Holly Farms of Texas, Inc. (“Holly Farms”). You are hereby advised that Rule 33
requires that each interrogatory be answered separately and fully in writing under
oath, that the answers be signed by the person m 1dng them, and that, within thirty
(30) days after service of these interrogatories, you shall serve a copy of the answers
upon the undersigned attorney for the United States. These interroga-tories shall be
deemed continuing, so as to require supplemental answers in accordance with Rule
26(e) of the Federal Rules of Civil Procedure.
DEFINITIONS AND INSTRUCTIONS
1. “Document” or “documents” refers to all written or graphic matters,

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-5-
of pollutants to navigable waters from any point source, and shall also include
discharges of pollutants from Outfall 301 to the ash ponds at the GCSES.
10. “Pollutant” is defined in Section 502(6) of the Clean Water Act, 33
U.S.C. (1362(6). 11. “NPDES permit” means any National
Pollutant Discharge Elimination System permit issued by EPA to Holly Farms,
including any renewed or modified permit.
INTERROGATORIES
1. In the event that Holly Farms denies any of the matters set forth in
Items 1 through 191 of the United States’ First Request for Admissions, please
provide the following information with respect to each such matter denied:
(a) the number of the Item and the time period covered by the Item;
(b) the numerical value that Holly Farms contends most accurately
states the concentration or amount of the particular
pollutant addressed in the Item;
(c) if Holly Farms denies any of the matters set forth in Items 1 through
190 of the United States’ First Request for Admissions but is unable to state the
numerical value that Holly Farms contends most accurately states the concentration
or amount of the particular pollutant, describe in detail the reason why Holly Farms
is unable to state such a numerical value;
(d) describe in detail the reason why each nu.merical value stated in
Holly Farms’ answer to sub-part (b), above, differs from the numerical value reported
in Holly Farms’ Discharge Monitoring Reports (‘DMRs) sent to the Environmental

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-6-
Protection Agency for the period covered by the Item;
(e) describe in detail all of the calculations or data underlying each
numerical value stated in Holly Farms’ answer to sub-part (b), above,
(f) identify any and all persons with knowledge of the data or
calculations described in answer to sub-part (e), above, and
(g) identify each and every document that relates to each numerical
value (or lack of a numerical value) stated in Holly Farms’ answers to sub-parts (b)
and (c), above, or that relates to the calculations or data described in Holly Farms’
answer to sub- part (e), above.
2. Identif y each and every occasion on which Holly Farms discharged
effluent at Outfall 001 with concentrations or amounts of pollutants that exceeded the
limits of concentrations or amounts specified in Holly Farina’ National Pollutant Discharge
Elimination System permit. With respect to each such occasion, please state whether
and when Holly Farms submitted to EPA and the State of Texas on a timely basis
a written Notice of Noncompliance Report as required by Part II. of Holly Farms’
NPDES permit.
3. Identify the persons employed and/or engaged by Holly Farms who
were andlor are primarily responsible for compliance with State clean water laws, the
Federal Clean Water Act, 33 U.S.C. (1251 sea. , regulations promulgated under
them, and the National Pollutant Discharge Elimination System permit for the
Center Plant from January 1, 1983, to the present. For each person identified,
summarize the person’s area of responsibility.

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-7-
4. Identif y all persons employed and/or engaged by Holly Farms at any
time since January 1, 1983, with knowledge of the design and specifications,
hydraulic capacity, capacity for reduction of Biochemical Oxygen Demand (“BOD-5”),
Total Suspended Solids (“TSS”), ammonia (as Nitrogen), oil and grease, fecal coliform
and pH, operation, maintenance, analytical procedures, record keeping and/or
reporting relating to the wastewater treatment facility at the Center Plant. For each
person identified, sunimsrize the person’s knowledge.
5. Identify all documents in any way relating to discharges of pollutants
at Outfall 001 at the Center Plant since January 1, 1983.
6. Describe all investigations, analyses, studies, or evaluations
(including but not limited to engineering surveys, process evaluations, sampling,
tasting, and design studies) that relate to the wastewater treatment facility at the
Center Plant and that relate to or were prepared during the period since January 1,
1983, and identify every person who participated in any manner in any of the above
investigations, s n dyses, studies, or evaluations.
7. Describe in detail each and every action that Holly Farms has
considered since January 1, 1983, (whether implemented or not) to achieve
compliance with Holly Farms’ NPDES permit, induding in the description the nature
of each action, the date or period of time during which the action was considered, and
an identification of each person who participated in any consider-ation or evaluation
of the action. -
8. For each action described in your answer to Interrogatory No.7, state

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-8-
whether the action was actually implemented or otherwise undertaken by Holly
Farms. If actually implemented or otherwi8e undertaken (including partially
implemented or undertaken actions), state the date that the action was implemented
or otherwise undertaken and state the complete expense of the action for Holly Farms
(including operation and maintenance expenses if applicable).
9. For each action identified in your answer to Interrogatory No. 7 that
was considered but rejected or not implemented (including non-implemented portions
of actions partially implemented or otherwise undertaken), state the reason the action
was rejected or not implemented and the estimated expense of the action for Holly
Farms (including operation and mpintenance expenses if applicable).
10. For the expenses described in response to Interrogatory No.8, state
what portion of the expense, if any, was eligible for investment tax credit and, if
applicable, the tax credit claimed, and state the basis for your answer.
11. State the rate of return on equity (the average anticipated future
value of the annual after-tax income divided by the total value of common
shareholder interest) for Holly Farms for each year since and including 1983, and
state the basis for your answer.
12. State the interest rate on borrowed capital (long term debt) of Holly
Farms for each year since and including 1983, state the source and type of borrowed
capital, and state the basis for your answer.
13. State the equity share of the total investment of Holly Farms for
each year since and including 1981. The equity share is equal to the proportion of

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-9-
a corporation’s long-term fnancing which is provided by common shareholders. It is
a fraction, the numerator of which is the sum of all common equity accounts on a
corporation’s balance sheet including common stock, retained earnings, capital
surplus, and any other accounts representing common equity investments. The
denominator of the fraction is determined by adding to the numerator the sum of the
preferred stock account plus all long-term debt incurred by the owner (excluding
portions of such debt in the current account). State further each item in the
calculation, and state the basis for your answer.
14. State the depreciable life (minimum number of years over which the
particular pollution control equipment may be depredated) assigned to the
wastewater treatment facility at the Center Plant or to any other wastewater
treatment equipment used since January 3, 1983, at the Center Plant. State the
basis for your answer.
15. Identify any and all persons, including experts, having any
knowledge of any facts that are or may be relevant to any of the issues in this
lawsuit.
16. Identify each person whom you expect to call as an expert witness
at the trial of this case and state in detail the subject matter and the substance about
which the expert is expected to testify, and identify the reports, factual observations,
mental impressions, and opinions held by any such expert.
17. Identify each and every person who supplied any of the
information given in your answers to these inter-rogatories and as to each such

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person, separately list each and
every interrogatory answer to which each such person supplied information or data.
Respectfully submitted,
___________ JERRY SCHWARTZ
Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
P. 0. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633-4059
OF COUNSEL:
Vicki R. Patton-Hulce
Office of Regional Counsel
U.S. Environmental Protection Agency
Region VI
1445 Ross Avenue
Dallas, Texas 75202-2733
Elyse DiBiagio-Wood
Office of Enforcement and
Compliance Monitoring - Water
U.S. Environmental Protection Agency (LE-134W)
410 M St S.W.
Washington, D.C. 20460

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) CIVIL ACTION NO. C-1-89-012
v.
HONORABLE CML B. RUBIN
ASHLAND ETHANOL, INC., et al. )
)
Defendants. )
________________________________________________________________)
PLAINTIFF’ S REOUEST FOR PRODUCTION OF DOCUMENTS (FIRST SET
Under the authority of Rule 34 of the Federal Rules of
Civil Procedure, defendants are hereby requested to produce for
the plaintiff, United States of America, the documents listed
below at the United States Attorney’s Office, 220 U.s.
CourthOuse. 100 East Fifth Street, Cincinnati, Ohio. Under
Rule 34(b), you are required to serve on the United States a
written response to this request within 30 days.
As used herein, “documents or adocumentg , wrecordu or
records mean the original and any copy, regardless of its
origin or location, of any book, pamphlet, periodical, letter,
memorandum, telegraph, minutes, chart, tabulation, manual,
guide, outline, abstract, history, and/or record of meetings,
conferences and telephone or other conversations or
communications, report, study, handwritten note, diary,
recording belts, electronics recording data sheet or data
processing card, program or any other written, recorded,
transcribed, punched, taped, film or graphic matter, however
produced or reproduced, to which you or any of your officers,

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2
agents or employees, have or have access to. A true copy will
suffice so long as you waive any objection to authenticity and
will have the original available for inspection upon request,
at the time of preparation of the Pretrial Order and at the
time of trial. The terms “document” or “documents”, “record”
or “records” also include copies of documents which are not
identical duplicates of the originals and copies of the
documents of which the originals are not in the possession,
custody or control of defendants.
1. Each and every document which discusses or relates to
the investigation, design, installation, performance and
operation of the vastewater treatment system(s) and
modifications thereto, at Outfall Number 001.
2. Each and every document which discusses or relates to
the influent process flows to the wastewater treatment systems
at Outfall Number 001.
3. Each and every document which discusses or relates to
the investigation, design, installation, performance and
operation of the wastevater treatment system(s) and
modifications thereto, at Outfall Number 002.
4. Each and every document which discusses or relates to
the influent flows to the vastewater treatment system(s) at
Outfall Number 002.

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5. Each and every document which discusses or relates to
defendants’ use of outside laboratories to perform analysis of
its wastewater. This Should include, but not be limited to,
contracts with laboratory facilities, correspondence with labs
and internal partnership memoranda discussing the laboratories.
6. Each and every document which discusses or relates to
defendants’ influent process flows and wastewater treatment
system thereto at Outfall Number 003 during 1984.
7. Each and every document which discusses or relates to
the current and projected business or financial performance of
South Point Ethanol.
8. Each and every document identified in defendants’
response to Plaintiff’s Interrogatorieg (first set).
9. Each and every document between Ohio EPA and
defendants regarding the wastewater treatment systems at
Outfall Numbers 001, 002 and 003.
Respectfully submitted,
D. Michael Crites
United States Attorney
By:
Gerald F. Kaniinski
Assistant U.S. Attorney
220 U.S. Post Office/Courthouse
100 East Fifth Street
Cincinnafi, Ohio 45202
(513) 684—3711

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4
Frederick S. Phillips
Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
(202) 633—5415
Arthur E. Smith, Jr.
Associate Regional Counsel
U.S. Environmental Protection
Agency, Region V
230 South Dearborn Street
Chicago, Illinois 60604
(312) 886—0697

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THE UNiTED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
FOURTH DWISION
UNITED STATES OF AMERICA,
PLAINTIFF,
v. Civil Action No. 3-87-708
Judge Magnuson
KOCH REFINING COMPANY,
DEFENDANT.
FIRST SET OF
DOCUMENT PRODUCTION REQUESTS
FROM PLAINTIFF TO DEFENDANT
Plaintiff, the United States of America, pursuant to Rules 26 and 34 of
the Federal Rules of Civil Procedure, requests Defendant to produce and permit
Plaintiff to inspect and copy each of the following documents that may be in
Defendant’s possession, custody or control. These documents shall be produced,
within 30 days after service of these Requests or within 45 days after service of the
Summons and Complaint in this action upon defendant, at the office of Susan L.
Schneider, United States Department of Justice, Land and Natural Resources
Division, P.O. Box 7611, Ben Fr inkIin Station, Washington, D.C. 20044, or at any
other location agreed upon by counsel for Plaintiff.
INSTRUCTIONS AND DEFINITIONS
1. Unless otherwise specified, these requests for production of

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15. “NPDES Permit No. MN0000418” means the National Discharge
Elimination System Permit issued to Koch on December 28, 1983, by the Minnesota
Pollution Control Agency, and which is attached as Exhibit A to the Complaint filed
in this action.
16. “Navigable water(s)” is defined in Section 502(7) of the Clean Water
Act, 33 U.S.C. ( 1362(7).
17. “Waters of the United States” is defined in 40 C.F.R. (122.2.
18. The words “and” and “or” shall be construed to be both disjunctive
and injunctive, as necessary, in order to give these Requests their broadest meaning.
19. For each document produced, identif y whether it is a true copy, and
if it is not a true copy, explain why.
20. These Requests are continuing in nature and must be supplemented
or amended promptly if you learn of any additional documents.
21. Unless otherwise indicated, these Requests apply to the time period
from January 1, 1984 to the present.
REQUESTS
1. All Monthly Operating Reports (“MORe”) relating to the discharge of
pollutants from the Rosemount facility pursuant to the terms of NPDES Permit No.
MN0000418.
EPA has copies of your MORe for the following months: January,
February, March, April, July and December of 1985, January, February, April, July,
November and December of 1986, and January and February of 1987. Copies of these

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MORe are attached to the First Set of Requests for Admissions from Plaintiff to
Defendant. You need not provide additional copies of these MORe unless the copies
attached to the admissions requests contain any errors or omissions or are in any way
different from the MORe in your possession.
2. All Discharge Monitoring Reports (“DMRs”) from June of 1987 to the
present, relating to the discharge of pollutants from the Rosemount facility pursuant
to the terms of NPDES Permit No. MN0000418.
3. All documents, other than those identified in Requests 1 and 2,
relating to the discharge of pollutants from the Rosemount facility pursuant to the
terms of NPDES Permit No. MN0000418, maintained by Koch or sent to EPA, the
State or any other governmental agency.
4. Sufficient documents (for e mple, organizational charts) that will
show completely and accurately the organizational structure of Koch and all corporate
level offices to which personnel at the Rosemount facility have reported at any and
all times from January 1, 1984 to the present.
5. Sufficient documents (for eirnniple, organizational charts) that will
identify completely and accurately all persons with responsibility for environmental
matters at both corporate and non-corporate levels at the Rosemount facility at any
and all times from January 1, 1984 to the present.
6. Sufficient documents to show completely and accurately the existence
of and relationship between Koch and any parent, predecessor, subsidiary or RffiHated
corporations or companies.

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7. All NPDES permit requests and applications, NPDES permit renewal
requests and applications, and other permit requests and applications filed by Koch
with federal, state or local authorities, to discharge pollutants from the Rosemount
facility.
8. All documents related to taking, evaluating, studying, discussing,
considering or otherwise relating to any test results, laboratory analyses, flow
measurements or concentration analyses of any pollutants discharged from the
Rosemount facility into navigable waters or waters of the United States. This
Request includes, but is not limited to, documents and reports that formed the basis
for the documents identified in Requests Nos. 1-3, and all documents relating to the
accuracy or validity of any and all of these test results, laboratory analyses, flow
measurements and concentration analyses.
9. All documents, including but not limited to any such documents from
or to any contractor, subcontractor or other outside party, relating to the
methodology, protocol or procedure for performing effluent sampling, laboratory
analyses, flow measurements, concentration %rnsllyses or other test on pollutants
discharged from the Rosemount facility to navigable waters or waters of the United
States.
10. All documents relating to the sampling of effluent from the
Rosemount facility, including but not limited to information as to when samples are
taken, what samples are taken, and the name of the person taking each sample, and
all documents relating to the development and/or change in any such program.

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8
11. All documents which refer or relate to the quantitative or qualitative
characteristics, including the toxicity, or chemical or physical characteristics, of
pollutants discharged from the Rosemount facility into navigable waters or waters of
the United States.
12. Sufficient documents that set forth the nature of your operations
from 1984 to the present, including the types of materials used, by-products,
products, and wastes generated.
13. All documents which refer or relate to the effects of the discharge
of pollutants from the Rosemou.nt facility on the water quality of the Mississippi
River.
14. All documents which refer or relate to whether or not discharges
from the Rosemount facility violate applicable water pollution control laws or NPDES
Permit No. MN0000418.
15. All documents relating to process or equipment changes at the
Rosemount facility which were designed to, or had the effect of, evaluating,
preventing, increasing, reducing or otherwise affecting discharges of pollutants from
the Rosemount facility into navigable waters or waters of the United States.
16. All documents relating to meetings, discussions or other written or
oral communications regarding technology, personnel training, inspection,
maintenance or any other means to reduce water pollutant discharges or achieve
compliance with water pollution control standards or NPDES Permit No. MN0000418.
17. All documents relating to all operating, mRintenance and inspection

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procedures at the Rosemount facility, and any and all changes in these procedures,
which were designed to, or had the effect of, preventing, increasing, reducing, or
otherwise affecting discharges of pollutants to navigable waters or waters of the
United States.
18. All documents relating to instructions, orders by representative of
EPA, the State or any other government agencies, or discussions, meetings or
correspondence between you and representatives of EPA, the State or any other
government agency regarding the placement of Outfall 20100 at the Rosemount
facility, the sampling and monitoring of pollutants discharged from Outfall 20100, or
methods of performing laboratory analyses on discharged pollutants.
19. All documents relating to procedures used by you or prescribed for
you to report to the EPA or the State, any water pollution discharges, violations of
water pollution laws, regulations, or violations of NPDES Permit No. 0000418.
20. All documents relating to any and all difficulties or problems you
encountered in meeting applicable water pollution control effluent limits or the limits
in NPDES Permit No. 0000418 regarding pollutants discharged from the Rosemount
facility.
21. All documents relating to planning and/or consideration by Koch of
whether or not to install or to defer installation of any water pollution control
equipment at the Rosemount facility.
22. All documents relating to consideration by Koch of whether or not
to implement or defer implementation of process changes or facility procedures that

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would in any way affect water and/or pollutant discharges from the Rosemount
facility.
23. All documents relating to the advantages, disadvantages or potential
implications to Koch of delaying installation of water pollution equipment at the
Rosemount facility.
24. All documents relating to the capital, operating or maintenance costs
of water pollution control equipment installed, or considered for installation, at the
Rosemount facility to achieve or contribute to the achievement of applicable water
pollution control standards and/or limits in NPDES Permit No. 0000418.
25. All documents, including but not limited to, bid requests, bids,
estimates and other cost documents, contracts or staff memoranda, which relate to
any water pollution control equipment installed or being installed at the Rosemount
facility.
26. All documents, including but not limited to, bid requests, bids,
estimates and other documents, that relate to costs of operation and maintenance,
construction and equipment, of any and all plans, whether presently implemented or
proposed, to expand the Rosemount facility from appro rimntely 137,000 barrels per
day to appro imiitely 170,000 barrels per day and from there to approTimi te1y
207,000 barrels per day and/or any other plan to expand the facility’s operations.
27. All documents containing instructions, from whatever source, to
Koch employees regarding steps to be taken in the event of an unauthorized
discharge of pollutants from the Rosemount facility to navigable waters or waters of

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the United States.
28. All documents, including training mfinuals, relating to operation,
testing or maintenance procedures with respect to water pollution control equipment
at the Rosemount facility.
29. All documents relating to meetings, discussions, or oral
communications regarding the discharge of pollutants from the Rosemount facility to
navigable waters or waters of the United States.
30. All documents relating to complaints received by Koch from any
source regarding the discharge of pollutants from the Rosemount facility to navigable
waters or waters of the United States.
31. All documents, including but not limited to minutes, notes and
memoranda, relating to meetings by Koch’s Board of Directors, officers, management
personnel, facility personnel or other agents of defendant regarding pollutant
discharges or compliance with water pollution control standards or the terms and
limits of NPDES Permit No. 0000418 at the Rosemount facility.
32. All studies, evaluations, tests, reports or other documents prepared
by Koch or any contractor, subcontractor, representative, agent or employee of
defendant or any other person relating to monitoring, sampling or analyses of
pollutants discharged from the Rosemount facility to navigable waters or waters of
the United States.
33. All documents relating to inquiries made by you into the causes of
discharges of pollutants at the Rosemount facility not authorized under applicable

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water pollution control laws or the terms and limitations of NPDES Permit No.
MN00004 18.
34. All documents that refer or relate to contacts, discussions, meeting,
or correspondence of any kind between representatives of EPA, the State and/or any
other governmental agency, and you or any person representing or acting on your
behalf, which relate in any way to the discharge of water pollutants at the Rosemount
facility.
35. All documents, including but not limited to, plans discussions,
meeting notes, reports, proposals or other documents, that relate to the 137,000
barrel per day (“BPD”) production level for which Koch’s NPDES permit was written
and/or present production levels.
36. All documents, induding but not limited to, plans, discussions,
meeting notes, reports, proposals, cost estimates or other documents, relating to any
plans to increase the operations and/or operational levels at the Rosemount facility.
37. All documents relating to any and all quality assurance and control
programs in use by the laboratory at the Rosemount facility at any time from
January 1, 1984 to the present, and all documents relating to any developments
and/or changes in any such program.
38. All documents relating to laboratory procedures in use by the
laboratory at the Rosemount facility at any time from January 1, 1984 to the present,
and all documents relating to any developments and/or changes in any such
procedure.

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39. All documents relating to the calibration and mnilltenance of
equipment used by the Koch laboratory.
40. All daily temperature logs for each of the following covering the
period from January 1, 1984 to the present: biological oxygen demand incubator(s);
drying oven(s); and refrigerator(s).
41. All documents relating to conducting blRnk determinations in the
biochemical oxygen demand tests required by NPDES Permit No. MN0000418 for the
period from January 1, 1984 to the present.
42. All documents relating to analyses of duplicate samples on all
testing required by NPDES Permit No. MN0000418 for the period from January 1,
1984 to the present.
43. All documents setting forth the procedures followed by laboratory
at the Rosemount facility for storing and/or discarding standards, and all documents
relating to any developments and/or changes in any such procedure. (See paragraph
293(g) of the Complaint ified in this action.)
44. All documents relating to the operation and maintenance of the
environmental testing monitor(s) used to test the effluent from the Rosemount
facility, including but not limited to documents setting forth when these monitor(s)
malfunction or are inoperative and when they are repaired or serviced, as well as
documents setting forth the policy and practice for purchasing and storing spare parts
for these monitor(s).
45. All documents prepared for or furnished to any person retained by

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defendant as a consultant or expert in connection with the subject matter of this case.
46. All reports, memoranda, analyses, computations or other documents,
including drafts, prepared by any person retained by defendant as a consultant or
expert in connection with the subject matter of this case.
47. All documents relating to defendant’s defenses and affirmative
defenses.
48. All documents defendant intends to rely on or introduce into
evidence at trial.
49. All documents relating to defendant’s document retention policies.
Respectfully submitted,
UNITED STATES OF AMERICA
ROGER J. MARZtJLLA
Acting Assistant Attorney General
JEROME G. ARNOLD
United States Attorney
ROYLENE A. CHAMPEAUX
Assistant United States Attorney
Office of the United States
Attorney
234 U.S. Courthouse
110 South 4th Street
Minneapolis, Minnesota 55401
(612) 332-8961

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SUSAN L. SCHNEIDER
Attorney
Environmental Enforcement Section
Land and Natural Resource Division
U.S. Department of Justice
10th and Pennsylvania Ave., N.W.
Washington, D.C. 20530
(202) 633-1196
OF COUNSEL :
SCOTF DISMUKES
Assistant Regional Counsel
Office of Regional Counsel
U.S. Environmental Protection Agency
230 South Dearborn Street
Chicago, illinois 60604
(3 12) 886-6631
DAVID HINDIN
Attorney
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
(202) 475-8547

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DiVISION
UNITED STATES OF AMERICA,
Plaintiff,
V.
CIViL ACTION NO. L-87-119-CA
HOLLY FARMS OF TEXAS, INC.
Defendant.
UNITED STATES’ FIRST REQUEST FOR
PRODUCTION OF DOCUMENTS
Plaintiff, the United States of America, pursuant to Rule 34 of the
Federal Rules of Civil Procedure, hereby requests that Defendant, Holly Farms of
Texas, Inc. (“Holly Farms”), produce the documents listed below. Holly Farms shall
produce for inspection and copying each of the documents listed below at the office
of the United States Attorney for the Eastern District of Texas, 600 InterFirst Plaza
Tower, 110 North College Street, Tyler, Texas, 75702, or such other place as counsel
for the parties may agree, within 30 days after service of this request.
INSTRUCTIONS AND DEFINITIONS
A. “Holly Farms” means Holly Farms of Texas, Inc., its officers,
employees, agents, servants, and its attorneys. These requests for production cover
all specified documents in the possession, custody, or control of Holly Farms.
B. “Document” or “documents” refers to all written or graphic matters,

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R. Unless otherwise stated, these requests apply to the period beginning
January 1, 1983 and ending at the trial of this matter.
S. Holly Farms shall identif r which paragraph of this request Holly
Farms considers each document or thing produced responsive to.
REQUESTS FOR PRODUCTION
1. All organizational charts for the department within
Holly Farms that is or was responsible for wastewater treatment, and all charts,
diagrams, and engineering drawings relating to wastewater treatment at the Center
Plant.
2. All permits and other documents that Holly Farms contends have
authorized water pollutant discharges from its Center Plant relating to any
modifications of, extensions of, or variances from the conditions or limits of the
NPDES permit or other water pollutant discharge permit applicable to the Center
Plant.
4. All documents relating to reports, written or otherwise, made to EPA
or the State, of any water pollutant discharges from the Center Plant that exceeded
NPDES limits.
5. All documents relating to or reporting any test results, laboratory
analyses, flow measurements, and/or concen- tration RT15 lyses of water pollutant
discharges at Outfall 001, including but not limited to all discharge monitoring
reports; non-compliance reports; bypass reports; other reports on water
pollutant discharges maintained by or sent to any other governmental entity; flow

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-7-
logs and measurement.s; ni’lyses or tests for Biochemical Oxygen Demand (“BOD-5),
Total Suspended Solids (“TSS”), pmmonia (as Nitrogen), oil and grease, fecal coliform
and PH; documents describing or reporting the toxic, chemical, or physical
characteristics of such discharges; and all underlying documents used as the basis for
or in the preparation of said documents.
6. All documents relating to any form of difficulties encountered by
Holly Farms in meeting applicable NPDES limits or other water pollutant effluent
limitations applicable to Outfall 001.
7. All documents relating to the causes and/or potential causes, or
inquiries into the causes and/or potential causes, of water pollutant discharges from
the Center Plant in excess of applicable NPDES limits.
8. All documents evaluating Center Plant procedures or alternative
procedures for reducing water pollution discharges at Outfall 001.
9. All documents containing any form of instructions to employees at
Holly Farms’s Center Plant regarding the level or amount of water pollutant
discharges.
10. All documents containing instructions to employees regarding steps
to be taken in the event of an unauthorized discharge of water pollutants at Outfall
001 or the Center Plant.
11. All documents relating to meetings, discussions, or oral
communication regarding water pollutant discharges at Outfall 001 or the Center
Plant.

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-8-
12. All documents relating to meetings, discussions, or other oral
communications regarding technology, personnel training, inspection, operation,
maintenance, or any other means to reduce water pollutant discharges, or to achieve
compliance with NPDES limits or other water pollution control standards applicable
to the Center Plant.
13. All documents, including minutes, relating to meetings of Holly
Farms’s officers, management personnel, facility personnel, or other persons retained
or engaged by Holly Farms regarding water pollutant discharges at Outfall 001,
including health or environmental effects, or compliance with NPDES limits or other
water pollution control standards applicable to Outfall 001.
14. All studies, evaluations, tests, reports, or other documents prepared
by any contractor, agent, or employee of Holly Farms or any other person relating to
water pollutant discharges at Outfall 001, including health or environmental effects,
or compliance with NPDES limits or other water pollution control standards
applicable to the Center Plant.
15. All documents relating to procedures for reporting water pollutant
discharges, or violations of water pollution laws, regulations, or permits to EPA or
the State.
16. All documents relating to practices or procedures, written or
otherwise, employed by Holly Farms regarding maintenance or servicing of water
pollution control equipment at or relating to the Center Plant.
17. All documents relating to daily and monthly influent pollutant

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loadings at the Center Plant.
18. All documents relating to design specifications and treatment
capacity of the wastewater treatment facility at the Center Plant.
19. All documents analyzing or evaluating equipment at or relating to
the wastewater treatment facility at the Center Plant with respect to reduction of
water pollutant discharges at Outfall 001.
20. All documents that relate to Holly Farms’ consideration or
evaluation of the equipment referred to in Request No. 19, above, or any other
equipment designed or intended to reduce water pollution discharges at Outfall 001.
21. All documents relating to consideration by Holly Farms of whether
to install, not to install, and/or defer installation of water pollution control equipment
at the Center Plant.
22. All documents relating to consideration by Holly Farms of whether
to implement, not to implement, and/or defer implementation of pollution control
measures at the Center Plant. 23. All documents relating to the advantages or dis-
advantages or potential implications to Holly Farms of delaying installation or
implementation of water pollution equipment or measures at the Center Plant.
24. All documents relating to control technology, devices, or other
equipment for the control or reduction of water pollutant discharges at the Center
Plant.
25. All documents relating to changes in operating, maintenance, or
inspection procedures at the facility that were designed to, or had the effect of,

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preventing or reducing discharges of water pollutants.
26. All documents that relate to: (a) the capital cost of improving the
wastewater treatment facility at the Center Plant so as to comply with applicable
NPDES limits; (b) the cost of maintaining and operating the wastewater treatment
facility at the Center Plant so as to comply with applicable NPDES limits; and (c) any
other expenses associated with or necessitated by compliance with applicable NPDES
limits or the Clean Water Act, 33 U.S.C. (1251 sea .
27. All documents that relate to: (a) the capital, operating, or
maintenance costs of water pollution control equipment installed, or that were
considered for installation, at the Center Plant to achieve, or contribute to the
achievement of, applicable water pollution control standards, including applicable
NPDES limits; and (b) the types, kinds, or numbers of pieces of equipment that
correspond to the cost figures contained in the documents produced in response to
item (a), above.
28. All documents relating to the choice of rate of return, or discount
rate, to be used in calculating a discounted cash flow for, or otherwise analyzing, a
particular investment by Holly Farms.
29. All documents relating to decisions to include or to exclude water
pollution control equipment as an alternative in deciding upon which capital assets
Holly Farms’s resources should be expended ( e.g , planning documents or their
equivalent containing such references).
30. All documents relating to criteria used by Holly Farms to determine

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- 11 -
whether to include or to exclude water pollution control equipment at the Center
Plant within a range of capital investment alternatives.
31. All documents relating to the procedures, rules, and standards used
by Holly Farms in depreciating assets, including how particular kinds of assets
(especially pollution control assets) are depreciated and at what rate.
32. All documents relating to any eligibility for or claim for investment
tax credit for any expense that Holly Farms incurred since January 1, 1983 to achieve
compliance with Holly Farms’s NPDES permit with respect to Outfall 001 or the
Center Plant.
33. All documents relating to the interest rate on borrowed capital (long
term debt) of Holly Farms for each year since and including 1983.
34. All documents relating to the equity share of total investment of
Holly Farms for each year since and including 1983.
35. All documents relating to the depreciable life assigned to the
wastewater treatment facility at the Center Plant or to any other wastewater
treatment equipment used since January 1, 1983 at the Center Plant.
36. All documents, including bid requests, bids, estimates, contracts, or
staff memoranda, that relate to any water pollution control equipment installed, to
be installed, or that was considered for installation, at the Center Plant.
37. All documents relating to meetings, discussions, or any other oral
communications relating to the cost of measures
for compliance with NPDES limits or other water pollution control standards

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- 12 -
applicable to the Center Plant.
38. All documents, including training manuals, relating to operating,
testing, or maintenance procedures with respect to water pollution control equipment
at the Center Plant. 39. All documents relating to any complaints received by
Holly Farms from any source regarding water pollutant discharges from the Center
Plant.
40. All documents relating to the effects of each of the Center Plant’s
water pollutant discharges on the quality, integrity, or cleanliness (even if such terms
are not specifically therein used) of the unnamed tributary of Prairie Creek or any
other receiving waters.
41. All documents that refer or relate to contacts of any kind (including
enforcement proceedings) between employees of EPA or the State and persons
representing or acting on behalf of Holly Farms concerning water pollutant
discharges at Outfall 001, including internal documents and those received from EPA
or the State.
42. Annual finRncial statements and summaries thereof for Holly Farms
for the years 1983 to the present.
43. All documents relating to initiatives, including but not limited to
grant applications, bond measures, or other revenue measures, undertaken or
considered by Holly Farms for the purpose of finincing any improvements of the
wastewater treatment facility at the Center Plant.
44. All documents prepared for or furnished to any persons retained by

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- 13-
Holly Farms as a consultant or expert in connection with the wastewater treatment
facility, discharges from Outfall 001, or the subject matter of this case.
45. All reports, memoranda, analyses, computations, or other documents
prepared by any person retained or engaged by Holly Farms as a consultant or expert
in connection with the subject matter of this case.
46. All documents that Holly Farms or any of Holly Farms’ witnesses
intend to rely on or introduce at the trial of this matter.
47. All documents identified in Holly Farms answers to the United
States’ First Interrogatories to Holly Farms.
48. All documents that form the basis for, in fuJi or in part, or that were
in any way reviewed, utilized, consulted, or relied upon in preparing Holly Farms’s
answers to the United States’ First Interrogatories to Holly Farms.
49. All documents relating in any way to the subject matter of this
action.
Respectfully Submitted,
___________ JERRY SCHWARTZ
Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
P. 0. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633-4059
OF COUNSEL:

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- 14 -
Vicki R. Patton-Hulce
Office of Regional Counsel
U.S. Environmental Protection Agency
Region VI
1445 Ross Avenue
Dallas, Texas 75202-2733
Elyse DiBiagio-Wood
Office of Enforcement and
Compliance Monitoring - Water
U.S. Environmental Protection Agency (LE-134W)
410 M St. S.W.
Washington, D.C. 20460
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was
served on all counsel of record in this case at the addresses shown below by United
States mail, postage prepaid, on October , 1987.
JERRY SCHWARTZ
Ruth Harris Yeager
Assistant United States Attorney
600 InterFiret Plaza Tower
110 North College Street
Tyler, Texas 75702

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
UNITED STATES OF AMERICA, )
Plaintiff,
v. ) Civil Action No. 87-24
)
F.B. PURNELL SAUSAGE COMPANY, INC.,)
Defendant.
__________________________________________________________________________________________ )
PLAINTIFF’S RESPONSES TO DEFENDANT’S
FIRST SET OF INTERROGATORIES
The United States submits the following responses and
ob3ections to the first set of interrogatories propounded by
Defendant.
GENERAl OBJECTION
The United States objects to this first set of
interrogatories to the extent this discovery seeks information
that is protected by attorney-client privilege and/or attorney
work doctrine.
INTERROGATORIES
1. Identify any person that you expect to call as an
expert witness, and state: (a) the name of the person, giving
his or her home and office address, profession or occupation,
employer and position; (b) the subject matter or area on which
each such expert is expected to testify; (a) the specialty, if
any, of such person in his or he ‘ 1 of’expertise; (d) the
substance of the facts and c ;* ne t y7i ! ch such expert is
expected to testify; and (e summar fr of th*t rounds for each
opinion of each such expert...

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—2—
RESPONSE : The United States has not completed its selection of
expert witnesses. The United States will supply this information
to Defendant when available, in advance of depositions of expert
witnesses, by mutual agreement of the parties.
2. Have you developed any calculations based on an
economic benefit analysis or BEN computer software program that
calculates the economic benefit that Purnell received from
delaying compliance with environmental regulations or statutes
described in your complaint? If so, identify the following:
(a) characterizations of each input, the numerical
value for each input utilized in the analysis and/or computer
program, and the numerical result of the analysis and/or computer
program;
(b) the source of the data utilized for each input in
the analysis and/or computer program;
(C) The persons involved in developing the analysis
and/or the running of the computer program;
Cd) the title and description of the analysis and/or
the running of the computer program;
Ce) all documents relating to any aatter described in
your answer to any portion of this question.
R SPONSK : The United States objects to this interrogatory on the
basis that it has developed such calculati s, but at this time
such calculations have been performed for settlement purposes
only, and not for trial. As these calculations are for

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—3—
settlement only, they are not admissible as evidence and at this
time the interrogatory seeks information that is not reasonably
calculated to lead to discovery of admissible evidence. The
United States will provide such information as is responsive to
this interrogatory once such information has been developed.
3. Have you developed any calculations, opinions or
conclusions based on a review of your penalty policy as applied
to the above styled action? If so, identify the following:
(a) the title, date and description of any penalty
policies reviewed or utilized by you in the above styled action;
(b) characterization of each input into the penalty
policy calculation and the numerical value utilized for such
input to your penalty policy;
(c) the source of the data utilized for each input
into your penalty policy;
(d) the persons involved in reviewing the penalty
policy against the facts and law of the above styled action;
(e) the monetary results of your review of the penalty
policy as applied to the facts and law of the above styled
action, and any opinions or conclusions that you have accordingly
reached;
(f) any other matters which affect the plaintiff’s
position as to the size of an appropriate penalty in this case?
(g) all documents relating to any matter described in
your answer to any portion of this question.

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—4—
RESPONSE : The United States objects to this interrogatory on the
basis that any calculations performed based on a review of the
penalty policy have been performed for settlement purposes only,
and not for trial. As such, any information developed at this
time is inadmissible and the interrogatory seeks information not
reasonably calculated to lead to the discovery of admissible
evidence in this action. If the United States bases the penalty
it seeks at trial in this action on the penalty policy for
settlement negotiations, it will supplement this interrogatory
accordingly.
4. Concerning the penalty policy identified in
interrogatory number 2 and applying it to the above styled
action, answer the following:
(a) Describe the monetary value, if any, you have
reached for the ‘economic benefit component,’ and its derivation.
(b) Describe the monetary value, if any, reached for
the ‘gravity component,’ and its derivation.
(C) Describe each ‘adjustment,’ the basis for the
‘adjustment,’ the monetary value of each ‘adjustment,’ and its
derivation.
Cd) State the monetary value, if any, you place on the
‘significance of violation,’ describe how this value was derived,
and identify all persons who have knowledge of this derivation.
Ce) State the monetary value, if any, you place on
“health and environmental harm,’ describe how this value was

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—5—
derived, and identify all persons who have knowledge of this
derivation.
(f) State the monetary value, if any, you place on
“number of violations,’ describe how this value was derived, and
identify all persons who have knowledge of this derivation.
(g) State the monetary value, if any, you place on
“duration of noncompliance,’ describe how this value was derived,
and identify all persons who have knowledge of this derivation.
(h) State the monetary value, if any, you place on any
‘history of recalcitrance,’ describe how this value was derived,
and identify all persons who have knowledge of this derivation.
(i) State the monetary value, if any, you place on
Purnell’s ‘ability to pay,’ describe how this value was derived,
and identity all persons who have knowledge of this derivation.
(j) State the monetary value, if any, you place on
‘litigation considerations,’ describe how this value was derived,
and identify all persons who have knowledge of this derivation.
(k) Do you agree that Purnell’s equitable defenses, if
proven at trial, should be taken into account so as to decrease
any penalty? If so, state what monetary value would be assigned
to this adjustment, describe how this value was derived, and
identify all persons who have knowledge of this derivation.
(1) Identify all docu ments relating to any matter
described in your answer to any portion of this question.

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-6—
RESPONSE : The United States objects to subpart (a) for the
reasons stated in response to interrOgatory 2, above. The United
States objects to subparts (b) through (j) for the reasons stated
in response to interrogatory (3), above. The United States
objects to subpart ( I C) on the basis that the United States does
not believe that the defenses asserted by Purnell are valid and
should not and cannot be taken in account to decrease a penalty
at trial, as more fully expressed in the United States Motion for
Partial Sum mary Judgment and Memorandum in Support.
5. Describe any fact which is not described in
response to Interrogatories 2, 3, and 4, and which you contend is
relevant to ‘the seriousness of the violation or violations, any
history of such violations, any good—faith efforts to comply with
the applicable requirements, the economic impact of the penalty
on the violator, and such other matters as justice may require,’
as stated in the Clean Water Act, and for each such fact identify
all persons who have knowledge of such fact and all documents
relating to such fact.
RESPONSE : See responses to thterrogatories 2, 3, and 4 above.
6. Concerning any calculations or analysis
performed by you on waste load allocations for Purnell and/or the
City of Simpsonville facilities, answer the following questions:
(a) Identify the dates of all such activities
performed concerning the City of Simpsonville and/or Purnell,
persons with knowledge of those activities, all documents

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—7—
relating thereto, and the results as they reflect on BOD5
effluent liaitations for the City’s current discharge point.
(b) Was the result of any of the activities described
in this question or its answer ever formally or informally
transmitted to the State? If so, identify the dates of such
transmittal, persons with knowledge of such transmittal, and all
documents relating thereto.
RESPONSE : (a) Waste load allocations were run on September 11,
and 16-18, 1985. Persons with knowledge of those activities are
James Greenfie].d and Kelly Cain, EPA Region IV employees. All
documents relating to these activities have been produced to
Purnell. Waste load allocations were also run in June 1988 by
Greg Jones, an EPA Region IV employee. All documents relating to
the June 1988 waste load allocations are being produced in
response to Purnall’s request for documents. The United States
objects to the phrase ‘results as they reflect on BOD5 effluent
limitations for the City’s current discharge point’ as it is
vague and ambiguous. Information concerning the results have
been produced to Purnell in prior document productions and are
also contained in the documents being produced in response to
Purnell’s second request for documents.
(b) Results of the September 1985 wasteload allocation may
have been disussed informally with State employees in telephone
conversations, but there is no record of the dates of any such
conversations or participants. The results were transmitted to

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-8—
the State with the letter of April 26, 1988, from John Mar]ar to
Jack Wilson, which letter is being produced to Purnell.
7. Concerning the first NPDES permit issued to
Purnell in late 1974 and effective on January 27, 1975, answer
the following questions:
(a) What was the wastewater flow upon which the
permit was based?
(b) Describe how the specific 80D5 limitations were
derived, identifying the steps in calculation, facts upon which
it was based, and the specific regulatory basis for its
derivation.
(C) What specific EPA regulation controlled the
development of the numerical BOD5 limitations at the time they
were derived for this permit?
(d) Identify the person who derived the discharge
limitations for this permit.
(e) Identify all documents relating to any matter
described in your answer to any portion of this question.
RESPONSE : (a) The United States objects to this subpart on the
basis that it is vague and ambiguous. The questions appears to
assume that the permit was based on wastevater flow, which may
not have been the case. The permit may have been based on other
factors besides flow. EPA has no definitive knowledge concerning
the basis for the 1975 permit, or the wastevater flow. EPA
believes that this permit was probably not based on flow. The

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‘-9—
1971 application indicates a flow of .02 MGD while the
application dated 1973 indicates a flow of .002 MCD.
(b) EPA has no definitive or specific knowledge concerning
how the BOD5 limitation was derived.
(C) EPA has no specific or definitive knowledge concerning
what regulation was used to develop the BOD5 limitations for the
permit.
(d) EPA has no record of the person(s) who derived the
discharge limitations for the permit. EPA speculates that Bill
Burton may have derived the limitations.
(e) All documents relating to this matter have been
produced to Purnell.
8. Concerning the second NPDES permit issued to
Purnell, which became effective on November 30, 1981, answer the
following questions:
(a) What was the wastewater flow upon which the permit
was based?
(b) Based on the facts and information now in the
possession of the plaintiff, was the then-applicable EPA policy
or regulation concerning ‘anti-backsliding’ appropriate as the
basis for establishing the discharge limitations for this
permit? If not, state why not.
(a) Bad the anti-backsliding’ policy or regulation not
applied to this permit in 1981, would the 80D5 discharge
limitations have been based on the State’s water quality based
limitations, which were sent to the EPA? If not, state why not.

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— 10 —
(d) Identify the persons who derived the discharge
limitations for this permit.
(e) Identify all documents relating to any matter
described in your answer to any portion of this question.
RESPONSE : (a) It is not clear what flow the permit was based
on. The NPDES application does not specifically state the amount
of flow from Purnell. A fact sheet prepared by the permit writer
indicates a flow of .02 MGD was considered based upon information
obtained from the basin plan.
(b) The United States objects to this subpart on the basis
that it is vague and ambiguous and is totally speculative. The
question also seeks information that is not reasonably calculated
to lead to admissible evidence, as the permit was validly issued
at the time and unchallenged by the permittee, and other
information surrounding issuance of the permit is irrelevant to
these enforcement proceedings and not admissible as a defense to
the violations. The United States also does not knov what
Defendant considers to be ‘facts and information in the
possession of the plaintiff’ and what Defendant considers a
‘fact’ and is unable to respond to this interrogatory.
(C) The United States objects to this subpart on the basis
that it seeks information that is not reasonably calculated to
lead to admissible evidence. The permit was validly issued and
unchallenged by the permittee at the appropriate time and the
information sought by this subpart is speculative and will not

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— 11 —
lead to admissible evidence and is irrelevant to this enforcement
proceeding. Notwithstanding this objection and without waiving
this objection, if the anti-backsliding provisions had not been
in effect, the more stringent of the limits based on effluent
guidelines or then-existing wasteload allocation would have been
placed in the permit.
(d) To the best of EPA’S knowledge, the fact sheet and
permit were prepared by Valerie Wickstrotn, now employed by the
Commonwealth of Kentucky.
(e) All documents relating to this matter were previously
produced to Purnell.
9. Concerning the EPA Administrative Order No. 86—
017(WSS) signed November 12, 1985 by Bruce Barrett and addressed
to the Purnell Sausage Company 1 answer the following questions:
(a) Name the person who specifically calculated the
effluent limitations in paragraph 3 of the Order.
(b) Describe the specific derivation of the BOD5
effluent limitations in paragraph 3 of the Order, identifying the
steps in calculation, facts upon which it is based, and the
specific regulatory bases for its derivation.
(C) Upon what flow are the effluent limitations in
paragraph 3 of the Order based?
(d) When did EPA and/or persons identified in response
to question 8(a) immediately above first become aware of facts
which would have enabled them to have issued effluent limitations
higher than those contained in Purnell’s earlier NPDES permits?

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— 12 —
If earlier than November 1985, why were the effluent limitations
not raised at that earlier date?
(e) Identify all documents relating to any matter
described in your answer to any portion of this question.
Q j : (a) Susan Rollins and Marshall Hyatt, both employed
by EPA, Region IV.
(b) The BOD5 limitation was derived by using production
figures of 100,000 to 110,000 supplied by Purnell’s consultant,
Andy Winfrey, and applying those figures to the effluent
guideline, 40 CFR Part 432, Subpart G. This figure was compared
to the figure derived from applying flow data of .065 MGD to the
then-current wasteload allocation of 10 mg/i. The more stringent
of the two figures was used as the SOD limit in the Order.
(C) All calculations requiring flow used a flow of .065
MGD.
(d) The United States objects to this subpart as it is
vague and ambiguous, particularly with respect to making a
hypothetical determination as to when EPA became ‘aware of facts
which vould have enabled them to have issued effluent limitations
higher’ than those in Purne].l’s permit. It is unknown what
information Defendant considers are “facts” that EPA may have had
at that time. The question also assui es EPA received such
“facts” enabling them to issue higher effluent limitations.
Notwithstanding this objection and without waiving it, EPA was
not given the “facts by Purnell to allow it to modify the permit

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— 13 —
before the Order was issued. EPA was never officially notified
by Purnell, as required by regulation, of changes in production
or flow, which may have lead to a permit modification. In
addition, Purnell never formally requested a permit
modification, as allowed under the regulations. EPA discussed
the proposed content of the Order with Andy Winfrey before it was
issued.
(e) The production figure used is contained in notes of a
telephone call between Susan Rollins and Andy Winfrey, dated
10/24/85. All documents relating to this matter have been
previously produced to Purnell.
10. Describe when and how you first became aware that
Purnel.l had relocated its discharge point. Identify any
documents referencing this fact.
It is unknown when EPA first became aware that Purnell
had relocated its discharge point. Purnell. failed to notify EPA
in advance of relocating its discharge point and never provided
specific notice of the exact relocation point after relocation.
There is a letter in EPA’s file dated May 2, 1983, frog Andy
Winfrey to William Taylor which indicates that the effluent is
being routed downstream, although no specifics are provided.
There is also a record of a telephone call between Susan Rollins
and Kyland Smithers on October 12, 1983, that in part concerned
construction of a new outfall. In the show cause meeting
concerning Purnell’s permit violation, held in April 1984 at EPA,

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— 14 —
with Andy Winfrey, the relocation was discussed. All documents
referred to above have been produced previously to Purnell,
including notes concerning the show cause meeting, taken by Susan
Rollins.
11. Describe when and how you first became aware that
Purnell had received a State operational permit with higher
discharge limitations than the NPDES permit? Identify any
document referencing this fact.
RESPONSE : EPA first became aware of the State operational permit
in April 1984 at the show cause meeting concerning Purnell’s
permit violations with Andy Winfrey, held at EPA. Notes
concerning this meeting taken by Susan Rollins have been produced
to Purnell.
12. Describe when and how you first became aware that
Purnell had entered into an Agreed Order with the State
concerning the relocation of its discharge line? Identify any
document referencing this fact.
RESPONSE : The issue concerning an agreement to relocate
Purnell’s discharge point apparently was first discussed with EPA
during a telephone call between Susan Rollins and Kyland Smithers
on October 12, 1983, and at the show cause meeting held in April
1984 at EPA with Andy Winfrey. The telephone call and meeting
are discussed in Susan Rollins’ notes, previously produced to
Purnell.

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— 15 —
13. Describe when and under what circumstances you
first contacted the State about the following:
(a) the relocation of Purnell’s wastewater discharge
line;
(b) the State operational permit giving Purnel]. higher
discharge limitations than its NPDES permit;
(C) the Agreed Order between the State and Purnel].
concerning the relocation of its wastewater discharge line.
(d) Identify all documents relating to any matter
described in your answers to any portion of this question.
RESPONSE : (a) EPA did not contact the State regarding the
relocation of the discharge point due to the fact that the State
never officially notified EPA of the relocation, nor did Purne]].,
until the fact was discussed in the April 1984 show cause
meeting.
(b) See response to (a) above; same for operational permit.
(C) See response to (a) above; same for Agreed Order.
(d) All documents relating to this matter have been
produced to Purnell.
14. Do you contend that Purnell’s wastewater discharge
has adversely affected human health and/or the environment? If
so, explain the factual basis for your contention. Identify all
documents relating thereto and identify all persons who have
knowledge concerning this contention.

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— 16 —
RESPONSE : The United States objects to this interrogatory as the
information sought is irrelevant as the Clean Water Act is a
strict liability statute and is not information that is
reasonably calculated to lead to admissible evidence in this
action. Nothwithstanding this objection and without waiving the
objection, there is no evidence, other than the reported fish
kills, that EPA is aware of that human health and/or the
environment has been adversely affected. However, EPA has not
examined local human health to determine if it has been adversely
affected, nor has it performed a study on the local environment
to determine if it has been adversely affected.
15. Is there a policy or program at EPA or the
Department of Justice which allows certain employees of those
agencies to receive monetary compensation based on penalties
assessed and/or collected in cases involving Clean Water Act
violations? If so, identify which persons would benefit from a
penalty in the above styled action and how much each would
benefit according to the penalty you propose in this case.
RESPONSE : There is no such policy or program.
16. Concerning the NPDES permit issued to the City of
Simpeonville which became effective on or about April 1, 1983,
answer the following questions:
(a) Identify the person or person who derived the
discharge limitations for that permit.

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— 17 —
(b) What was the wastewater flow U Ofl which the permit
was based?
(C) Describe how the specific SODS limitations were
derived, identifying the steps in calculations, the facts upon
which the calculations were based, and the specific regulatory
basis for their derivation.
(d) Explain why the effluent limitations in this
permit were not changed after you changed the limitations for the
Purnell discharge in your November 1985 order to Purnell.
(e) Do YOU contend that discharge pursuant to the
discharge limitations in the City of Simpsonvjlle permit will not
adversely affect human health and/or the environment? If not,
why not? If you contend that such discharge will adversely
affect human health and/or the environment, explain why you have
not taken action to restrict it or, if you have, describe what
action and when taken.
(f) Identify all documents relating to any matter
described in your answer to any portion of this question.
RESPONSE : (a) The files formerly compiled and retained by EPA
concerning this permit have been transferred to Kentucky, as part
of the delegation of the NPDES permit program to Kentucky.
Consequently, EPA is unaware of who derived the discharge
limitations for this permit.
(b) See response to (a), above. EPA has no knowledge
concerning the wastewater flow upon which the permit was based.

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— 18 —
(C) See response to (a), above. EPA has no knowledge
concerning how the BOD5 limitations were derived.
(d) The Simpsonvjl].e permit was administered by Kentucky
after delegation of the program to Kentucky in 1983, and thus any
modification to the permit would have had to have been done by
Kentucky, rather than EPA. EPA is unaware why Kentucky did not
change the limits or whether Kentucky considered changing the
limits.
(e) As previously stated, this permit is monitored and
administered by Kentucky and has been since 1983. EPA has no
information regarding the present impact of the discharge on
human health and/or the environment.
(f) All documents relating to this matter have been
produced to Purne]].,
17. When did Purnell first inform you, either formally
or informally, of the new discharge limits issued to Purne]]. by
the State in 1982? Identify all persons with knowledge of this
communication and all documents relating thereto.
li1 : To the best of EPA’s present knowledge, EPA was first
told of the State discharge limits in the April 1984 show cause
meeting concerning Purnell’s permit violations. Persons
attending this meeting were Andy Winfrey, on behalf of Purnell,
and William Taylor, Jim Greenfie]d, Susan Rolling and Kelly Cain
for EPA. All documents relating to this meeting have been
produced to Purnel].

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— 19 —
18. Did you, formally or informally, ever alert
Purnell that you would not recognize the higher limitations of
the State issued operational permit as a modification to the
Federal permit? If so, identify all persons with knowledge of
such notice, and any documents relating thereto.
RESPONSE : The United States objects to this interrogatory as it
is irrelevant and not reasonably calculated to lead to admissible
evidence, as state and federal permits are independent of each
other and a state water permit cannot by law modify a federal
NPDES permit. Notwithstanding this objection, Purnell was told
in the April 1984 show cause meeting that the Federal NPDES
permit was in effect and that Purnell was obligated to comply
with the Federal permit and that its limits were not altered by
the issuance of a State permit with different limits. The
participants in the April 1984 show cause meeting were Bill
Taylor, Jim Greenfield, Susan Rollins and Kelly Cain, EPA Region
IV employees. All documents relating to this matter have been
produced.
19. Did you ever, formally or informally, inform the
State that the State operational permit with higher BOD5 effluent
limitations issued to Purnell. was ineffective and that the NPDES
permit was controlling? If so, identify dates, persona with
knowledge, and all documents relating thereto.
RESPONSE : See response to interrogatory 18.

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— 20 —
20. When did you first obtain the State’s wasteload
allocation determination that the water quality based discharge
limitation for 30D5 for the Purnell facility was 25 mg/i?
Identify all persons with knowledge of your receipt thereof and
all documents relating thereto.
R .$P2 L : EPA has never received an official State waste].oad
allocation for BODS for the Purnell facility. The State provided
a letter dated June 29, 1981, from Herb Ray to Valerie Wickstrom
that attached a chart containing a 80D5 number based on Kentucky
Water Quality requirements. This letter was not a State
certification of EPA’s permit limits.
21. Did you request that Purnel]. perform a stream
study? If so, explain why and when requested. Identify all
persons with knowledge thereof and all documents relating
thereto.
RESPONSE : EPA did not request that Purnell a stream study.
Purne]. ]. stated at the April 1984 show cause meeting that the
waste load allocation numbers should be higher, to which EPA
disagreed. Both parties mutually agreed that Purnel], could
perform a study if it desired to show that the waste lead
allocation numbers should be higher. Persons previously
identified who attended the show cause meeting would have
knowledge. All documents have been produced previously.
22. Do you contend that the BOD5 limitations in
Purnell’s NPDES permit could not have been raised by you prior to

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— 21 —
a stream study? If not, why not? If they could have been
raised 1 explain why this was not done prior to the completion of
the stream study?
Purnell could have sought a permit modification at any
time, pursuant to the appropriate procedures found in 40 CFR Part
122. If Purnell met the appropriate regulatory requirements 1
including submission of adequate supporting information,
Purnell’s permit may have been modified to raise the limits prior
to the stream study.
23. Identify each and every complaint that you have
received from citizens or any other person concerning any
condition relating to the discharge from Purnell’s vastewater
treatment plant, and all documents relating thereto.
RESPONSE : EPA has not directly received complaints concerning
Purnell’s discharge. The State has received complaints and
performed numerous investigations, and documents relating to
these complaints have been sent to EPA. These documents have
been produced to Purnell previously.
24. List all witnesses, with a description of their
expected testimony, that you expect to utilize at trial in this
case.

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— 22 —
RESPONSE :
witnesses
known and
________ The United States has
at this time, but will
in accordance with the
25. State the factual
contained in paragraph 11 of the
action, and identify all persons
documents relating thereto.
not selected all of its
supply such information when
Local Rules.
basis of the allegations
Complaint in the above styled
with ki owledge thereof and all
RESPONSE : Several individuals have observed an apparent
stormwater discharge that is discharging or has discharged
pollutants into the unnamed tributary at Purnell, which discharge
is not included in Purnell’s permit, and is thus,, unpermitted.
This discharge has been observed by Susan Rollins and Joe
Compton, both EPA Region IV employees, and by Kyland Smithers, an
employee of the State of Kentucky. The inspection report of Joe
Compton of July 1986 relates to these allegations and has been
produced to Purnel]. previously.
26. Do you contend that Phase III of the Purnel].
stream study was unnecessary in order for you to develop waste
load allocations of BOD5 for Purnall? Explain why or why not.
RESPONSE : Purnell was never told by EPA not to do Phase III of
the study. Phase II of the study upheld the previous waste
load allocation and it was apparent that Purnell could not meet
the permit limits or then-existing water quality limits. If
Purnell chose to do Phase III, it could have so done, although

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23 a
Phase 1! provided adequate information to d.i onstr.te that the
va•tC 3oad a1l* ation was corrsct.
27. Identify .sah parson frog whom information was
obtained for the answers to thesa intarroqatortes.
Suaan ol1ins, Jim Qra.nfi. d and Merehall Hyatt of
EPA Region IV.
ze. Do you acne to eupple ent your answers to these
tnts roqatories if, between the time of your answer to thee.
intarragatorlee and the time of trial, you obtöln any information
upon the bs.i. of which you know that any answer VU incorrect
when ‘ads. ox that any answer though correct when made 1. no
]onqer correct in any respect?
z .sZs f...
.speotful ty •u aitted,
O)ZR? D. MOOl
Environmiiital Enforcement lictian
Land and Natuzal Jesources Division
U.S. Department of 7usttcs
P.O. mox 7E11, Ben Franklin etation
Washington, DC. 20044
SUSAI( ROLLINS
Water Xanag.m.nt Division
U.S. EPA, R.5101% IV
345 Coiartland St., N.E.
Atlanta, Georqi& 30365
Od SOOON 91:tI 88’O Ufl( - P9PP- Pc.-POP :131 1W 11 3 P 93 dd3
- 9P PØP 14Qt : t 2-ø -9 x : g ñ)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff,
) CIVIL ACTION NO. C-l-89-012
v.
HONORABLE CARL B. RUBIN
ASHLAND ETHANOL, INC., et a l. , )
)
Defendants.
__________________________________________________________________________________ )
PLAINTIFF ‘ S RESPONSES TO DEFENDANTS’ FIRST REOUEST FOR DOCUMENTS
GENERAL OBJECTIONS :
The United States objects to the definition of documents
which includes identical copies with non-relevant file
notations which is overly broad and unduly burdensome.
Nonetheless, without waiving these objections, the United
States submits the below responses.
The United States objects to the instructions which go
beyond the requirements in the Federal Rules of Civil
Procedure.
R QNZ :
Responsive objections and documents have already been
produced in plaintiff’s responses to defendants’
interrogatories. Those documents and objections are
incorporated herein by reference. Additional responses are
discussed below:

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2
Attached is a letter dated January 23, 1984, which is
responsive to request 2.(c).
The United States objects to the production of documents
related to U.S. EPA’s decision to initiate the above-captioned
enforcement action. The U.S. EPA prepared and sent a
Litigation Report which recommended a civil action, to the
Department of Justice. Agency documents associated with the
initiation of the enforcement action against defendants
including documents related to the Litigation Report are
privileged as deliberative, attorney work product and attorney
client privilege.
In response to request 2.(k) see Exhibit B of the
complaint which specifies the alleged violations for which the
United States is seeking civil penalties in the amended
complaint.
I declare under the penalty of perjury that the foregoing
answers are true and correct to the best of my knowledge,
information and belief.
Ross Del Rosairo
Environmental Engineer
As to objections and as required by Federal Rule of Civil
Procedure 26(g):
Arthur E. Smith, Jr.
Associate Regional Counsel

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNTIED STATES OF AMERICA, )
)
Plaintiff,
) CIVIL ACTION NO. C—l—89—012
v
) HONORABLE CARL B. RUBIN
ASHLAND ETHANOL, et al. )
)
Defendants. )
_______________ )
PLAINTIFF’S FIRST PEOUEST FOR ADMISSIONS AND FOURTH SET OF
INTERROGATORIES AND FOURTH SET OF PLAINTIFF’S REQUESTS FOR
PRODUCTION OF DOCUMENTS
Plaintiff, United States of America, pursuant to Rule 36
of the Federal Rules of Civil Procedure, requests defendants to
admit the truth of the matters set forth below within thirty
(30) days of service hereof. In addition, pursuant to Rules 33
and 34 of the Federal Rules of Civil Procedure, plaintiff
requests that defendants answer in writing and under oath each
of the interrogateries and the production of documents as set
forth below in accordance with the following instructions and
definitions.
DEFINITIONS AND INSTRUCTIONS
All of the definitions and instructions contained in
plaintiff’s previous three sets of interrogatories and requests
for documents are referenced and incorporated herein.

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2
INTERROGATORY NO • 1
State the basis for defendants’ contention in Paragraph 16
of the nsver denying the allegations contained in Paragraph 16
of the Complaint regarding the limits imposed on the discharge
of BOD 5 and TSS at Outfall 001 by the
July 14, 1983 NPDES permit issued to South Point Ethanol.
Identify any documents which support this contention.
REOUEST TO ADMIT NO. 1 .
During the period of time between July 1983 and September
1987, defendants discharged into the Ohio River from
Outfall 001 pollutants in the concentrations and quantities
identified in Attachment 1.
INTERROGATORY NO. 2 .
If the answer to Request to Admit No. 1 is anything other
than an unqualified positive, state the basis for such
contention. Identify all documents which relate to, describe
or support such contention.

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3
REOUEST TO ADMIT NO. 2
During the period between July 1983 and September 1987
defendants discharged into the Ohio River from Outfall 002 the
pollutants in the concentrations and quantities identified in
Attachment 2.
TERROGATORY NO. 3
If the answer to Request to Admit No. 2 is anything other
than an unqualified positive, state the basis for such
contention. Identify all documents which relate to, describe
or support such contention.
R OUEST TO ADMIT NO. 3
During the period between July 1983 and September 1987
defendants discharged into the Ohio River from Outfall 003 the
pollutants in the concentrations and quantities identified in
• Attachment 3.
INTERROGATORY NO. 4..
If the answer to Request to Admit No. 3 is anything other
than an unqualified positive, state the basis for such
contention. Identify all documents which relate to, describe -
or support such contention.

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4
P.EOUEST TO ADMIT NO. 4 .
Exhibit A attached hereto is a genuine copy of NPDES
Permit No. H00076392, issued by the Ohio Environmental
Protection Agency (“OEPA”)to defendants far the SPE facility.
REOUEST TO ADMtT NO. 5 .
Exhibits 3.l-B.52 attached hereto are genuine copies of
monthly operating reports submitted to OEPA by defendants
pertaining to the South Point Ethanol facility.
REOUEST TO ADMIT NO. 6 .
The numerical values reported in Exhibits Ll-B.52
attached hereto are true and correct.
INTERROGATORY NO • 5 .
If the answer to Request to Admit No. 6 is anything other
than an unqualified positive, state the basis for such
contention. Identify all documents which relate to, describe
or support such contention.

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5
INTERROGATORY NO.6
State the basis for defendants’ denial in Paragraph 14 of
the Answer. Identify any documents which support this denial.
REOUEST FOR PRODUCTION OF DOCUMENTS (FOURTH SETJ
Produce all the documents identified pursuant to
plaintiff’s fourth set of interrogatories.
Respectfully submitted,
D. Michael Crites
United States Attorney
By:_____________________
GERALD F. KAZIINSKI
Assistant U.S. Attorney
220 U.S. Post Office/
Courthouse
100 East Fifth Street
Cincinnati, Ohio 45202
(513) 684—3711
GORDON STONER
Environmental Enforcemr ent
Section
Land and Natural Resource.
Division
U.S. Department of ustice
Washington, D.C. 20530
(202) 786—5244

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6
ARTHUR E. SMITH, JR.
Associate Regional Counsel
U.S. Environmental Protection
Agency, Region V
230 South Dearborn Street
Chicago, Illinois 60604
(312) 886—0697 -

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
UNITED STATES OF AMERICA, )
Plaintiff, ) Case No. M88—108 CA2
) (previously consolidated
v. ) with Case No. M88-107 CA2)
)
MENOMINEE PAPER COMPANY, INC.,)
JUDGE HILLMAN
and
BELL PACKAGING CORPORATION, )
)
Defendants.
UNITED STATES OF AMERICA’S RESPONSE TO
DEFENDANT MENOMINEE PAPER COMPANY, INC.’S
SEVENTH INTERROGATORI ES
Plaintiff, the United States of America, pursuant to Rules
26 and 33 of the Federal Rules of Civil Procedure, hereby
responds and objects as follows as to Defendant’s Seventh
Interrogatories.
GENERAL OBJECTIONS
The United States objects generally to each of Defendant’s
interrogatories to the extent that it is vague, overbroad, and
burdensome; seeks information not relevant to the subject matter
of these actions or not reasonably calculated to lead to the
discovery of admissible evidence; or seeks information that is
protected by the attorney-client privilege, the deliberative
process privilege, or the qualified immunity for attorney
litigation work product. By answering or responding in full or

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in part to any of these interrogatories, the United States does
not waive any objections.
ANSWERS TO INTER.ROGATORIES
1. Is it Plaintiff’s contention that one or more of the
violations of the City of Menoininee’s (“City”) NPDES Permit that
the City reported at any time between March 1983 and September
1989 were caused in whole or in part by the Menominee Paper
Company (“MPC”)?
ANSWER : Yes.
2. If the answer to Interrogatory No. 1 is anything other
than an unqualified “no,”
(a) Does Plaintiff contend that MPC in whole or in
part caused any violations other than exceedances
of BOD 5 or TSS limitations or parameter (commonly
referred to as “BOD 5 or TSS violations”)? If so,
please identify each other such limitation,
parameter or violation.
ANSWER : No.
(b) How many such BOD 5 and TSS violation does
Plaintiff attribute, in whole or in part, to MPC,
and on what dates?
ANSWER : The United States attributes all of the City’s BOD and
TSS violations as set forth in the City’s Discharge Monitoring
Reports (DMR’s). The DMR’s are business records available to
the defendant.
(C) How many such other violations does Plaintiff
attribute, in whole or in part, to MPC, and on
what dates?
ANSWER : The United States is not aware presently of other
violations by the City of Menominee of its NPDES permit
parameters which have been caused by the Menominee Paper Company.

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(d) State each fact upon which Plaintiff (sometimes
hereafter referred to as “EPA”) will rely in
proving that MPC was a cause of each such
violation.
ANSWER : The United States is continuing to discover evidence
relating to MPC’s violations. The United States will rely upon
the following facts, without limitation, to support its
contention that MPC’s discharge of pollutants to the City’s POTW
caused the City to violate the TSS and SOD limits of its NPDES
permit. The City of Menominee was in compliance with its NPDES
permit before accepting MPC’s discharge. From 1980 to August
1989, MPC was the largest single source of wastewater
contributing more than half of the flow and organic loading of
the plant. The POTW was neither designed nor could it be
operated to achieve its permit limits while accepting all the
industrial wastewater MPC was sending to the POTW. MPC’s
discharge caused the City to exceed its permit limits with an
increasing frequency due to the increased concentration of BOD
and TSS as well as increased volume of MPC’s discharge to the
City. When MPC ceased discharging to the City, the City once
again was in compliance with its permit and has remained in
compliance ever since.
3. Identify each date that Plaintiff contends that MPC
violated the federal Industrial Pretreatment Program (IPP)
requirements.

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ANSWER : Objection. The term federal Industrial Pretreatment
Program (“IPP”) is not defined. The United States has alleged no
violations of the IPP as it understands the term.
a)State what relationship, if any, such contentions
bear to the (i) date and (ii) scope of implementation
by the City of the IPP requirements.
ANSWER : See Response No. 3 above.
4. For each date of alleged violation referred to in
Interrogatory No. 3, please state:
(a) The nature of each date’s violation;
(b) The specific IPP requirement(s) that EPA alleges
were violated for each date;
(C) The cause of each date’s violation; and
(d) The facts upon which EPA will rely to support its
allegations that MPC violated an IPP
requirement(s) on each date.
ANSWER : See Response No. 3.
5. Identify any and all other pretreatment violations
alleged by EPA against MPC not covered by Interrogatory No. 1,
No. 2 or No. 3 and state:
(a) The statutory or regulatory basis for each such
alleged violation;
(b) The (i) date, (ii) nature and (iii) cause of each
such alleged violation; and
(c) The facts upon which EPA will rely to support its
allegations of each such alleged violation.
ANSWER : These pass through and interference violations are
prohibited by 40 C.F.R. §403.5(a) and Section 307(d) of the Clean
Water Act, 33 U.S.C. §1317(d). The dates of the violations are

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contained in the City of Menominee Discharge and Monthly
Operating Reports which are public records available for
inspection in Lansing, Michigan. See Response No. 2(d)
6. State the total number of IPP violations that EPA
contends that MPC committed.
(a) State EPA’S rationale and method for calculating
the total number of IPP violations.
ANSWER : See Response Nos. 2(b) and 3.
7. Does EPA contend that MPC was not authorized, between
March 1983 and January 1988, to discharge its effluent to the
City’s publicly owned treatment facility (“POTW”)?
ANSWER : MPC was neither authorized to discharge, nor prohibited
from discharging, industrial wastewater to the City POTW,
provided however, that MPC was prohibited from discharging
effluent which would pass through the City POTW without receiving
sufficient treatment or interfere with the City POTW operation.
See Response No. 5.
(a)If the answer to Interrogatory No. 7 is anything
other than an unqualified “no,” please state EPA’S contention as
to such authorization or lack thereof.
ANSWER : See Response no. 7.
8. The following Interrogatories pertain to MPC’s
discharge to the City’s treatment facility (the “POTW”) or
pertain to EPA’s contentions with respect to such discharge:
(a) State whether any parameters of MPC’s discharge to
the POTW were required to be monitored. If so,
state which parameters were required to be
monitored, and how often.

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(b) Please identify who was responsible for conducting
the monitoring.
(C) Were records maintained of this monitoring? ie
so, please identify them,
(d) At what physical point in the conveyance of MPC’s
wastewater to the POTW was any person(s) required
to monitor MPC’S discharge?
(e) What IPP effluent limitations and monitoring
frequencies, if any, does EPA allege are
applicable to the parameters identified in
response to Interrogatory No. 8(a)?
(f) What is the basis for EPA’s contention that the
IPP limits or frequencies identified in
Interrogatory No. 8(e) were applicable to MPC’s
discharge?
(g) Does EPA contend that any exceedance of a limit
set forth in Interrogatory No. 8(e) constituted an
IPP violation?
(h) If the answer to Interrogatory No. 8(g) is
anything other than an unqualified “no,” state the
facts upon which EPA will rely to prove an
exceedance occurred, including but not limited to,
the specific samples and specific test results
underlying each alleged violation.
(1) If the answer to Interrogatory No. 8(g) is
anything other than an unqualified “no,” did EPA
account for test method variables in determining
whether a violation occurred (e.g., different test
methods, test method accuracy)? If so, explain
how these variables were applied to each MPC
exceedance. If not, why not?
(j) Does EPA contend that a violation of any monthly
average IPP limit set forth in response to
Interrogatory No. 8(e) is a violation for each day
of the month?
(k) Would EPA’S response to Interrogatory No. 8(j)
change if daily sampling results were performed to
support the monthly average? If so, how would the
response change? If not, why not?

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ANSWER : Objection. The United States objects to this
interrogatory as vague and overbroad. See Response Nos. 5 and 7.
9. Is it EPA’S contention that one or more of the
violations by the City of its NPDES permit, serve as a basis for
showing that MPC was a cause of such violations?
ANSWER : Yes.
10. If the answer to Interrogatory No. 9 is anything other
than an unqualified “no,” state the facts upon which EPA will
rely to substantiate its contention as to each such violation.
ANSWER : See Response No. 2(d).
11. If the answer to Interrogatory No. 9 is anything other
than an unqualified “no,” explain the extent to which EPA alleges
that any of the City’s NPDES violations were caused by MPC’s
discharge, and identify each such City violation by (a) date and
by (b) parameter or other limit which was violated.
ANSWER : The United States believes that all of the City’s
violations of its BOD and TSS permit limits were caused by MPC’s
discharge. See Response Nos. 2(d), 5 and 7.
12. Does EPA contend that any of the City’s NPDES
violations reported between 1983 and 1987 were caused by a
discharge to the City from MPC that either (a) “interfered with”
treatment by the City’s POTW, or (b) “passed through” the POTW
with insufficient treatment? If either (a), or (b), or both, is
contended, identify each parameter, each date and the amount of
the exceedance allegedly caused by MPC, and the facts upon which
EPA will rely to support its contentions.
ANSWER : Yes. See Response Nos. 5 and 7.
13. Does EPA contend that MPC violated any IPP requirements
by discharging pollutants to the City’s POTW which either (a)
“interfered with” or (b) “passed through” the POTW? If either
(a), or (b), or both, is contended:

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(i) Identify each date of alleged “interference” or
“pass through” and the statutory or regulatory
basis for each violation.
(ii) Identify which constituents or pollutants are
alleged to have “interfered with” or “passed
through” the POTW on each date so identified.
(iii) Explained how EPA or others sampled or analyzed
the discharge from MPC to the POTW, through the
POTW, or out of the POTW to determine that any
alleged pollutants from MPC’s discharge
“interfered with” or “passed through” the City’s
POTW.
(iv) State the facts upon which EPA will rely to
establish that the MPC discharge allegedly
“interfered with” or “passed through” the City’s
POTW.
ANSWER : Yes. See Response Nos. 5 and 7.
II. 14P0’s NPDES Permit.
14. Is it EPA’S contention in this case that a violation by
MPC of a monthly average NPDES limit is a violation for each day
of that month? If so, please state the basis and reasoning for
that contention.
(a) Would EPA’s response to Interrogatory No. 14
change if daily sampling results were performed to
support the monthly average? If so, how would the
response change? If not, why not?
(b) Is it EPA’S contention that the environmental
impacts of MPC’s alleged violations have been
severe? If so, please state the facts to support
this contention. If no, please explain.
ANSWER : Yes. The United States objects to this interrogatory in
that it calls for a legal opinion or conclusion based on a
hypothetical situation and is thus not a proper interrogatory.
Without waiving its objection, the United States contends that
MPC’s discharge of pollutants in violation of the Clean Water Act

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constitutes a Per se harm to human health and the environment.
Violations of NPDES permit effluent limitations harm human health
and the environment by undercutting Congressional goals and
policies. See generally . Section 101(a) of the Act, 33 U.S.C.
1251(a). MPC’s violations of the effluent limitations and the
pretreatment standards also causes harm by discouraging others
from complying with the Clean Water Act.
15. Please state the basis and reasoning for increasing the
recalcitrance factor in the BEN calculation from 10% in Septe er
1987 to 20% as of October 1989?
ANSWER : Objection. The United States objects on the grounds
that this interrogatory is seeking information that could not
lead to the discovery of admissible evidence. See generally,
Rule-40$, Fed. R. Evid. Further, the United States objects that
any information on how the United States calculated or will
calculate a civil settlement penalty amount is protected by the
attorney-client privilege, and/or the qualified immunity for
attorney work product. Without waiving these objections, the
United States responds that there is no recalcitrance factor in
the BEN calculation.
16. Please state the basis and reasoning for recalculation
MPC’s civil penalty amount after September 1987.
ANSWER : Objection. See Answer No. 15.
III. Economic Issues.
17. Please identify each individual who assembled the raw
data used as input to the BEN computer model to calculate a

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noncompliance penalty for MPC. State the source of each
component of this raw data.
ANSWER : Objection. The United States objects on the grounds
that this interrogatory is seeking information that could not
lead to the discovery of admissible evidence. See generally,
Rule 408, Fed. R. Evid. All calculations and inputs related to
economic benefit, using EPA’s BEN model, that have been performed
in this litigation have been for purposes of establishing a
settlement penalty only and as such are not subject to discovery.
The United States strongly objects to this and all related
discovery requests that seek information on how EPA used the BEN
model to estimate MPC’s economic benefit of noncompliance for
purposes of settling this lawsuit. Further, except to the
extent such information has been released by the United States to
MPC as part of settlement negotiations, or it was ordered to
release the information because it failed to timely claim an
applicable privilege, all economic benefit analyses performed for
settlement are protected by the attorney-client privilege, and/or
the qualified immunity for attorney work product.
18. Please identify the following rates or amounts EPA
attributed to MPC in the BEN model calculations:
(a) The discount rate.
(b) The inflation rate.
(C) The rate used for adjusting the calculated
economic savings from the alleged date of
noncompliance to the date of penalty payment.

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ANSWER : Objection. See objections in Response No. 17.
19. For each rate listed in Interrogatory No. 18, please
explain the (a) factual basis and (b) economic theory, if any,
that supports the use of each of these rates.
ANSWER : Objection. See objections in Response No. 17.
20. Please identify each individual who developed each rate
referred to in Interrogatory No. 18, and also identify each
individual who made the decision to use each such rate in EPA’s
calculations.
ANSWER : Objection. See objections in Response No. 17.
21. Identify each individual who performed the BEN Model
calculations reported in the October 3, 1989 letter from Daniel
S. Jacobs to Claudia Rast.
ANSWER : Objection. See Response No. 1.7. Without waiving
its objections, the United States responds that Mr. David Hindin,
Esquire, prepared the settlement calculations contained in the
letter.
22. Does the rate calculated in response to Interrogatory
No. 18(c) represent MPC’s actual rate of return on any money
allegedly saved through non-compliance with the Clean Water Act?
If not, why not?
ANSWER : Objection. See objections in Response No. 17.
23. Please set forth the factors that EPA uses to determine
when it will run the ABEL Model in a Clean Water Act noncom-
pliance penalty case. Please state how these factors were or
were not applied to MPC?
ANSWER : Objection. The United States objects to this
interrogatory as not reasonably calculated to lead to the
discovery of admissible evidence, as inquiring into information
protected by attorney—client privilege and the limited immunity
for attorney work product, and as seeking to determine the United

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States’ method of assessing a civil penalty for settlement
purposes. The civil penalty amount calculated to date (as well
as its constituent parts) has been prepared for settlement
purposes only and is not admissible at trial. It also
constitutes attorney work product to the extent that it was
prepared by an attorney or at an attorney’s direction, and is
protected by attorney-client privilege to the extent that it was
considered confidential communications to attorney’s for the
United States.
24. Does EPA contend that MPC’s financial condition or
information raises the issue of “ability to pay” as defined under
EPA’s ABEL Model? If not, why not? If so, explain.
ANSWER : Objection. See objection in Response No. 23.
25. What value for the Beaver’s Ratio under the ABEL Model
does EPA contend to be considered a sign of financial distress?
Please state the basis and reasoning for this contention.
ANSWER : Objection. See objections in Response No. 23.
26. What value for the Fixed Charge Coverage Ratio under
the ABEL Model does EPA contend to be a sign of financial
distress? Please state the basis and reasoning for this
contention.
ANSWER : Objection. See objections in Response No. 23.
27. Please provide a list of each of those individuals who
have ever provided substantive testimony on behalf of EPA
concerning the economic theory behind the methodology of the BEN
Model. Also state (a) the name of the organization or
organizations by which each was employed, and (b) citations to
the cases in which each has provided testimony.

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ANSWER : Objection. The United States objects to this
interrogatory as vague, overbroad, burdensome and not reasonably
calculated to lead to the discovery of admissable evidence.
28. Please provide the name and address of each consultant
and his or her firm, where applicable, that has provided
Plaintiff with an expert report utilizing a different methodology
from that described in the May 1987 BEN User’s Manual for
determining the appropriate discount rate.
(a) Please state, as for each such use of different
methodology, the rate for adjusting the calculated
economic savings from the alleged date of noncompliance
to the date of penalty payment.
(b) Please identify each such expert report, and (if you
will do so without a motion to produce) provide a copy
of all such reports.
ANSWER : Objection. See Answers to Response Nos. 27. In
addition, the United States objects on the grounds that the
phrase “different methodology from that described in the May 1987
BEN User’s Manual for determining the appropriate discount rate”
is vague, indefinite and apparently assumes that the United
States and MPC agree or would agree on what is a different
methodology for calculating discount rate from that described in
the May 1987 BEN User’s Manual. The United States knows of no
such agreement and is not required to guess at what MPC’s
arguments or opinions might be. Further, the United States
objects that any such reports which were prepared for settlement
purposes in individual enforcement cases are protected by the
attorney-client privilege, and/or the qualified immunity for
attorney work product.

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29. Identify the following individuals and the role they
have played, if any, in this litigation:
(a) Gerald Hellerman.
ANSWER : Mr. Hellerinan is the Chief Financial Analyst for the
Department of Justice, Antitrust Division. He has been
designated by the United States as an expert witness in this
action.
(b) Gail Coad.
ANSWER : Ms. Coad is a non—testifying expert retained by the
United States for the purposes of this action.
(C) Jonathan Libber.
ANSWER : Mr. Libber is an attorney whose involvement in this
litigation is protected by attorney- client privilege and the
limited immunity for attorney work-product.
(d) Robert Newport.
ANSWER : Mr. Newport was the U.S. EPA Region V engineer assigned
to this litigation until January 1988.
(e) David Hindin, exclusive of his role, if any, as a
trial attorney in this cause as to which an attorney-client or
other privilege is claimed.
ANSWER : None.
(f) Arthur Shattuck.
Mr. Shattuck is serving as an expert to the United States in this
action.

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(g) Mark Klingenstein
ANSWER : Mr. Klingenstein is serving as an expert to the United
States in this action.
30. Please provide the educational background and any
supplemental training for each such individual.
ANSWER : Objection. The United States objects to providing such
information for its attorneys and persons not designated as
testifying experts on the grounds it is not reasonably calculated
to lead to the discovery of admissible evidence and protected as
attorney work product and/or attorney—client privilege. Mr. Mark
Klingenstein is currently employed as a Senior Environmental
Engineer with Science Applications International Corporation
(“SAIC”) in Paramus, New Jersey. Mr. Klingenstein holds a B.S.
in Civil Engineering from Drexel University and an M.S. in the
same discipline from Stevens Technical Institute. Mr.
Klingenstein is a registered Professional Engineer (“P.E.”) in
the State of New Jersey. Mr. Newport is no longer employed by
U.S. EPA and there are no records indicating his academic
background.
IV. The city of Menomine.
31. Please state each violation of the City’s NPDES permit
which EPA initially alleged to have occurred in this cause, both
by month and year, and by permit parameter or other permit
provision.
(a) Please state such information as to all these
violations EPA finally concluded to have occurred,

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immediately prior to EPA’s settlement of its civil
penalty claim against the City.
ANSWER : For the United States’ initial allegations, see United
States v. City of Menominee , No. 88-107CA2.
32. Please explain the basis or bases for EPA’s settlement
of its civil penalty claim against the City of Menominee.
ANSWER : Objection. The United States objects to this
interrogatory as seeking information which is protected by the
attorney—client privilege and the qualified immunity for attorney
work product, as well as not being reasonably calculated to lead
to the discovery of admissible evidence. See the Consent Decree
between the City of Menominee and the United States filed on
October 25, 1989.
33. Was the MABEL Model used to assess the City of
Menominee’s ability to pay any non-compliance civil penalty? If
not, why not?
ANSWER : Objection. The United States objects to this
interrogatory as seeking information which is protected by the
attorney-client privilege and the qualified immunity for attorney
work product as well as not being reasonably calculated to lead
to the discovery of admissible evidence.
34. Please state the most recent results from the BEN
and/or MABEL Models (a) calculated with respect to the City and
(b) as such results relate to any civil penalty involving the
City.

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ANSWER : Objection. The United States objects to this
interrogatory as seeking information which is protected by the
attorney-client privilege and the qualified immunity for attorney
work product as well as not being reasonably calculated to lead
to the discovery of admissible evidence.
35. Identify the portion of the civil penalty settlement
with the City of Menominee attributable to each of the following:
(a) The economic benefit the City obtained through
non-compi lance;
(b) The gravity of the violations;
(c) The recalcitrance factor; and
(d) Any reduction of the proposed penalty due to:
(i) “operation and maintenance credits” as
defined in page 11-5 of the May 1987 BEN
User’s Manual;
(ii) the City’s ability to pay a civil penalty; or
(iii) mitigating circumstances.
ANSWER : Objection. The United States objects on the grounds
that this interrogatory is seeking information that could not
lead to the discovery of admissible evidence. See generally,
Rule 408, Fed. R. Evid. Further, the United States objects that
any information on how the United States calculated a civil
settlement penalty amount in order to settle its claims against
the City of Menominee, or any other municipality, is protected by
the attorney-client privilege, and/or the qualified immunity for
attorney work product. The United States strongly objects to all

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discovery that seeks information on the specific internal
settlement calculations that EPA may have performed in settling a
particular Clean Water Act enforcement case pursuant to EPA’s
February 11, 1986, Clean Water Act Penalty Policy for Civil
Settlement Negotiations .
36. Has EPA ever applied different standards from those set
forth in its Civil Penalty Policy when determining the amount of
a civil penalty settlement with a municipality? If so, explain
the basis for the deviation.
ANSWER : Objection. See Answer No. 35 above.
37. Has EPA ever settled a municipal non-compliance civil
penalty case for a per capita assessment based upon the
municipality’s population? If so, explain the rationale and the
basis for this settlement methodology.
ANSWER : Objection. See Answer No. 35 above.
V. Miscellaneous
38. Please state when Plaintiff first “learned that the
defendants’s (MPC’s] monitoring and reporting of its effluent
discharges to the Menominee River since 1973 has been grossly
inaccurate,” as stated in Plaintiff’s portion of the December
1989 Joint Status Report.
ANSWER : Although a precise date is not readily available, the
United States first learned of significant underreporting of flow
by MPC in calculating its NPDES permit parameters through the
discovery and examination of various internal MPC documents which
spoke of the underreporting and the consequences of the
underreporting. Since then, the sworn testimony of MPC employees
has verified this situation.

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39. Please identify each document now known to Plaintiff
which Plaintiff contends as supporting what Plaintiff has
learned.
ANSWER : Objection. The United States objects to this
interrogatory as overbroad and burdensome.
40. Please state the number of violations of MPC’s 1973
NPDES permit (Government Exhibit A to its original complaint)
which Plaintiff contends to have been reported by MPC, for the
month of April, 1983.
ANSWER : The United States understands that MPC reported to the
State of Michigan violations of the 1979 proposed permit which
was attached to the 1979 Consent Judgement between the State of
Michigan and MPC.
41. Please also identify each permit parameter, or other
permit limitation, term or condition, which Plaintiff contends
was so reported as violated, for the month of April 1983.
ANSWER : The United States understands that MPC reported to the
State of Michigan violations of the 1979 “draft” permit which was
attached to the 1979 Consent Judgement between the State of
Michigan and MPC.
42. Please answer the two forgoing Interrogatories not with
respect to MPC’s 1973 permit, but, rather, with respect to draft
NPDES permit which attached to the 1979 consent judgment (MPC’s
Exhibit 1 to its original Answer).
ANSWER : Objection. The United States objects to this
interroagatory as irrelevant, burdensome and not reasonably
calculated to lead to the discovery of admissible evidence.
Neither the Court nor the United States recognizes the “draft”

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— 20 —
permit as an officially approved permit. Without waiving its
objections, pursuant to Rule 33(c), the United States identifies
MPC’s DMRs and MORs as providing the information requested.
43. Please answer the foregoing three interrogatories, for
each of the following months:
(a) May 1983
(b) June 1983
(C) July 1983
(d) August 1983
(e) September 1983
(f) October 1983
(g) November 1983
(h) December 1983
(i) January 1984
(j) February 1984
(k) March 1984
(1) April 1984
(in) May 1984
(n) June 1984
(o) July 1984
(p) August 1984
(q) September 1984
(r) October 1984
(s) November- 1984
(t) December 1984
(u) January 1985
(v) February 1985
(w) March 1985
(x) April 1985
(y) May 1985
(z) June 1985
(aa) July 1985
(bb) August 1985
(cc) September 1985
(dd) October 1985
(ee) November 1985
(ff) December 1985
(gg) January 1986
(hh) February 1986
(ii) March 1986
(jj) April 1986
(kJc) May 1986
(11) June 1986
(mm) July 1986
(nfl) August 1986
(oo) September 1986

-------
— 21 —
(pp) October 1986
(qq) November 1986
(rr) December 1986
(ss) January 1987
(tt) February 1987
(uu) March 1987
(vv) April 1987
(ww) May 1987
(xx) June 1987
(yy) July 1987
(zz) August 1987
(aaa) September 1987
(bbb) October 1987
(ccc) November 1987
(ddd) December 1987
(eee) January 1988
(fff) February 1988
(ggg) March 1988
(hhh) April 1988
(iii) May 1988
(jjj) June 1988
(kkk) July 1988
(111) August 1988
(mmm) September 1988
(nnn) October 1988
(000) November 1988
(ppp) December 1988
(qgq) January 1989
(rrr) February 1989
(sss) March 1989
(ttt) April 1989
(uuu) May 1989
(vvv) June 1989
(www) July 1989
(xxx) August 1989
ANSWER : See Response No. 43.
44. Does Plaintiff now have any agreement or understanding
with the State of Michigan (“State”) that it will share with the
State any monies paid by MPC to Plaintiff pursuant to any
settlement or any judgment in this case?
ANSWER : Objection. The United States objects to this
interrogatory as irrelevant and not reasonably calculated to lead

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— 22 —
to the discovery of admissible evidence. Without waiving its
objection, the United States responds, no.
45. Please state whether Plaintiff and the State of
Michigan at any prior time had any such understanding with
respect to this case.
ANSWER : Objection. The United States objects to this
interrogatory as irrelevant and not reasonably calculated to lead
to the discovery of admissible evidence. Without waiving its
objection, the United States responds, no.
46. Please state whether Plaintiff now has any agreement of
understanding with the State of Michigan pursuant to which
Plaintiff will reimburse the State of Michigan for any costs or
attorney fees incurred by the State in connection with its
participation in this litigation?
ANSWER : Objection. The United States objects to this
interrogatory as irrelevant and not reasonably calculated to lead
to the discovery of admissible evidence. Without waiving its
objection, the United States responds, no.
47. Please state whether Plaintiff and the State of
Michigan at any prior time had any such agreement or
understanding with respect to this case?
ANSWER : Objection. The United States objects to this
interrogatory as irrelevant and not reasonably calculated to lead
to the discovery of admissible evidence. Without waiving its
objection, the United States responds, no.
48. What is EPA’S contention in this litigation, concerning
the requirements imposed on EPA pursuant to 44 U.S.C.
§1342(d) (2) (B)?
ANSWER : Objection. This interrogatory is unintelligible.

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— 23 —
49. What IS EPA’S contention as the first “date of
transmittal of the proposed permit” with respect to the 1979
proposed NPDES permit (a copy of which is part of Exhibit 1 to
MPC’s original Answer).
ANSWER : The first official date of transmittal of the 1979
proposed permit in accordance with the provisions of the
Memorandum of Agreement between U.S. EPA and the State of
Michigan was July 25, 1979. The first date of the 1979 proposed
permit being transmitted informally from the Michigan DNR office
in Lansing which handled NPDES permits to U.S. EPA was July 10,
1979.
50. What is EPA’S contention concerning the applicability
(from July 1979 - January 1988) of the requirements imposed by
the parameter, limitations, terms and conditions of the 1979
proposed NPDES permit (Exhibit 1 to MPC ‘S original Answer) on
(a) EPA
ANSWER : Objection. The United States objects to this
interrogatory as vague and unintelligible. Neither the Court nor
the United States recognizes the “Proposed Permit” as an
officially approved permit; thus, the “Proposed Permit”
provisions are inapplicable.
(b) MPC
ANSWER : Objection. See Response No. 50(a).
(C) State of Michigan
ANSWER : Objection. See Response No. 50(a).

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— 24 —
Cd) City of Menominee
ANSWER : Objection. See Response No. 50(a).
51. Did such 1979 proposed NPDES permit serve to establish
any permit parameters, limitations, terms or conditions for MPC
with respect to the State of Michigan at any time, or for any
length of time?
ANSWER : Objection. The United States objects to this
interrogatory as irrelevant and not reasonably calculated to lead
to the discovery of admissable evidence. As a matter of federal
law, the 1979 Proposed Permit was inapplicable. As a matter of
state law, the United States has no opinion.
52. Please answer Interrogatory No. 51 with respect to
Plaintiff.
ANSWER : No.
53. What is Plaintiff’s contention with respect to whether
the 1979 proposed NPDES permit authorized MPC’s diversion of a
portion of its effluent to the City’s POTW?
ANSWER : Objection. See Response No. 50(a).
54. What is Plaintiff’s contention as to the effect, if
any, of the statement in the 1979 proposed NPDES permit that
“this permit and the authorization to discharge shall expire at
midnight, March 31, 1981?
ANSWER : Objection. See Response No. 50(a).
55. Please identify all instances where a person or entity
required to have an NPDES permit, was subject to one set of
parameters, limitations, terms and conditions with respect to a
State, and another set of parameters, limitations, terms or with
respect to EPA.

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— 25 —
ANSWER : Objection. The United States objects to this
interrogatory as vague, argumentative, overbroad and not
reasonably calculated to lead to the discovery of admissible
evidence.
Respectfully submitted,
David A. Hind
Attorney/Advisor
U.S. Environmental Protection Agency
401 N. Street, S.W. (LE—134W)
Washington, D.C. 20460
(202) 475—8547
DANIEL S. JACOBS
Trial Attorney
Land and Natural Resources Divis-ion
U.S. Department of Justice
Environmental Enforcement Section
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633—4076
JOHN SMIETANKA
United States Attorney
Western District of Michigan
THOMAS 3. GEZON
Chief Assistant U.S. Attorney
339 Federal Building
Grand Rapids, Michigan 49503

-------
OF COUNSEL:
Nicholas Bollo
Assistant Regional Counsel
U.S. Environmental Protection
Agency, Region V
230 S. Dearborn Street
Chicago, Illinois 60604
— 26 —

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff, ) Case No. M88—108 CA2
(previously consolidated
v. ) with Case No. M88-107 CA2)
MENOMINEE PAPER COMPANY, INC.,)
JUDGE HILLMAN
and
BELL PACKAGING CORPORATION,
Defendants.
UNITED STATES OF AMERICA’S RESPONSE
TO DEFENDANT’S EIGHTH INTERROGATORIES
Plaintiff, the United States of America, pursuant to
Rules 26 and 33 of the Federal Rules of Civil Procedure, hereby
responds and objects as follows to Defendant’s Eighth
Interrogator ies.
GENERAL OBJECTIONS
The United States objects generally to each of Defendant’s
interrogatories to the extent that it is vague, overbroad, and
burdensome; seeks information not relevant to the subject matter
of these actions or not reasonably calculated to lead to the
discovery of admissible evidence; or seeks information that is
protected by the attorney-client privilege, the deliberative
process privilege, or the qualified immunity for attorney
litigation work product. By answering or responding in full or
in part to any of the interrogatories served upon it, the United
States does not waive any objections.

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—2—
ANSWERS TO INTERROGATORIES
1. Based only on MPC’s monthly operating report for April,
1983 state the number of violations which Plaintiff contends are
shown by that report.
ANSWER : See attached tables.
2. As to each such violation so shown, please state each
permit parameter, or other permit limitation, term or condition,
which Plaintiff contends was so violated, for the month of April,
1983.
ANSWER : See attached tables.
3. Please answer the two foregoing Interrogatories, for
each of the following months:
(a) May 1983
(b) June 1983
(C) July 1983
(d) August 1983
(e) September 1983
(f) October 1983
(g) November 1983
(h) December 1983
(i) January 1984
(j) February 1984
(k) March 1984
(1) April 1984
(in) May 1984
(n) June 1984
(0) July 1984
(p) August 1984
(q) September 1984
(r) October 1984
(s) November 1984
(t) December 1984
(U) January 1985
(v) February 1985
(w) March 1985
(x) April 1985
(y) May 1985
(z) June 1985
(aa) July 1985

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—3—
(bb) August 1985
(cc) September 1985
(dd) October 1985
(ee) November 1985
(ff) December 1985
(gg) January 1986
(hh) February 1986
(ii) March 1986
(jj) April 1986
(kk) May 1986
(11) June 1986
(nun) July 1986
(nn) August 1986
(oo) September 1986
(pp) October 1986
(qq) November 1986
(rr) December 1986
(ss) January 1987
(tt) February 1987
(uu) March 1987
(vv) April 1987
(ww) May 1987
(xx) June 1987
(yy) July 1987
(zz) August 1987
(aaa) September 1987
(bbb) October 1987
(ccc) November 1987
(ddd) December 1987
(eee) January 1988
Cf ff) February 1988
(ggg) March 1988
(hhh) April 1988
(iii) May 1988
(jjj) June 1988
(kick) July 1988
(111) August 1988
(nunm) September 1988
(nnn) October 1988
(ooo) November 1988
(ppp) December 1988
(qqq) January 1989
(rrr) February 1989
(sss) March 1989
(ttt) April 1989
(uuu) May 1989
(vvv) June 1989
(www) July 1989
(xxx) August 1989

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—4—
ANSWER : See attached tables.
4. Further with respect to Interrogatory 45 of defendant
MPC’s seventh Interrogatories to Plaintiff, please state whether
Plaintiff and the State of Michigan at any prior time had any
agreement or understanding with the State of Michigan, that
Plaintiff will share with the State of Michigan any monies paid
by MPC to Plaintiff pursuant to any settlement or any judgemerit
in this case.
ANSWER : Objection. The United States objects to this
interrogatory as irrelevant and not reasonably calculated to lead
to the discovery of admissible evidence. Without waiving its
objection, the United States responds, no.
5. Further with respect to Interrogatory 51 of Defendant
MPC’s Seventh Interrogatories to Plaintiff, does Plaintiff
contend that the 1979 proposed NPDES Permit did not establish any
permit parameters, limitations, terms or conditions for MPC with
respect to the State of Michigan at any time?
ANSWER : Objection. The United States objects to this
interrogatory as irrelevant and not reasonably calculated to lead
to the discovery of admissible evidence. Without waiving these
objections, as a matter of federal law, the 1979 proposed permit
is inapplicable. As a matter of state law, the United States has
no opinion.
6. If the answer to the foregoing interrogatory is
anything other than an unqualified “no,” please identify each of
those permit parameters, limitations, terms or conditions which
were so established for MPC with respect to the State of
Michigan, and the date or dates upon which each was first
established.
ANSWER : Objection. Unintelligible, but see Answer No. 5.

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—5—
7. Further with respect to Interrogatory No. 6 above,
please identify the period or periods of time during which each
such parameter, limitation, term or condition was so established.
ANSWER : See Answer No. 5.
8. Please answer the three foregoing Interrogatories, with
respect to Plaintiff.
ANSWER : Yes, the United States contends that no provisions of
the 1979 proposed NPDES permit are applicable as a matter of
federal law. Also, see Answer No. 5.
9. What is Plaintiff’s contention as to the legal basis
for use of Plaintiff’s BEN computer model (also known as its “BEN
model”)? Include in your answer specific answers to these sub-
interrogator ies:
ANSWER : Objection. The United States objects to this
interrogatory as vague and not reasonably calculated to lead to
the discovery of admissible evidence. See generally, Rule 408,
Fed. R. Evid. The United States Environmental Protection Agency
uses the BEN computer model to assist its own staff in estimating
certain economic benefits an organization may have received from
delaying its compliance with environmental regulations. Pursuant
to the Agency’s February 16, 1984, Policy on Civil Penalties and
the related media specific policies developed to implement the
1984 Policy, most relevant here, the February 11, 1986, Clean
Water Act Penalty Policy for Civil Settlement Negotiations , the
Agency’s first step in developing a settlement penalty is to
estimate the defendant’s economic benefit of noncompliance using
the BEN model. In Clean Water Act enforcement actions, the BEN
model is used o’4 y for settlement purposes and thus is not

-------
—6—
subject to discovery. While the BEN model is fully consistent
with the Agency’s mandate to ensure compliance with the statutes
it administers, the BEN model was created as a policy by the
Agency. A copy of the “BEN model” is available to all members of
the general public.
a. Has the BEN model ever been subject to public notice
procedures?
ANSWER : No.
b. Has BEN model ever been published for public
comTnent?
ANSWER : No.
c. Has the BEN User’s Manual ever been subject to
public notice procedures?
ANSWER : No.
d. Has the BEN User’s Manual ever been published for
public comment?
ANSWER : No.
e. Is the BEN model a rule, regulation, or guidance
having, in any way, the force of law?
ANSWER : No.
f. Is the BEN User’s Manual a rule, regulation, or
guidance having, in any way, the force of law?
ANSWER No.
g. Has the BEN model ever been subject to any formal
public review procedure of any kind?
ANSWER Objection. The United States objects to this
interrogatory as vague. Without waiving its objection, the
United States responds, no.
h. Has the BEN User’s Manual ever been subject to any
formal public review procedure of any kind?

-------
—7—
ANSWER : Objection. The United States objects to this
interrogatory as vague. Without waiving its objection, the
United States responds, no.
10. With respect to the BEN model, and the calculations
thereunder, does Plaintiff contend that the “gravity factor”
results are additive to the “economic benefit factor” results in
penalty calculations?
ANSWER : The United States objects on the grounds that this
interrogatory is seeking information that could not lead to the
discovery of admissible evidence. See generally, Rule 408, Fed.
R. Evid. Further, the United States objects that any information
on how the United States calculated or will calculate a civil
settlement penalty amount is protected by the attorney-client
privilege, and/or the qualified immunity for attorney work
product. Without waiving these objections, the United States
agrees that under the February 11, 1986 Clean Water Act Penalty
Policy for Civil Settlement Negotiations , EPA does add a gravity
factor to the economic benefit estimate in order to calculate a
penalty which it would be willing to accept in settlement of a
particular Clean Water Act enforcement action. Without waiving
these objections, the United States responds yes.
11. Unless the answer to the foregoing interrogatory is
anything other than an unqualified “no,” please identify the
legal basis for such a contention.
ANSWER : Objection. The United States objects on the grounds
that this interrogatory is seeking information that could not
lead to the discovery of admissible evidence. See generally,

-------
—8—
Rule 408, Fed. R. Evid. Further, the United States strongly
objects to this interrogatory because how the United States
calculated or will calculate a civil settlement penalty amount is
completely outside the scope of discovery. The United States
strongly objects to all discovery that seeks to investigate the
merits and underlying rationale of EPA’s February 11, 1986, Clean
Water Act Penalty Policy for Civil Settlement Negotiations . As
Defendant knows from reading this Policy, the purpose of the
Policy is to calculate “a reasonable and defensible penalty which
the Agency believes it can and should obtain in a settlement in
compromise of its claim for the statutory maximum penalty .
[ emphasis added].” page 2 of Policy.
12. What considerations govern the calculation of the
“litigation consideration factor” in the BEN model?
ANSWER : Objection. See Answer No. 11. Without waiving these
objections, the United States asserts that the “litigation
consideration factor” has nothing to do with the BEN model.
13. What does Plaintiff contend to be the legal bases for
such considerations?
ANSWER : Objection. See Answer Nos. 9 and 11.
14. With further respect to the BEN model, what is the
actual “non-compliance date” which Plaintiff contends to be
applicable to this case?
ANSWER : Objection. The United States objects on the grounds
that this interrogatory is seeking information that could not

-------
—9—
lead to the discovery of admissible evidence. See generally,
Rule 408, Fed. R. Evid. All calculations and inputs related to
economic benefit, using EPA’s BEN model, that have been performed
in this litigation have been for purposes of establishing a
settlement penalty only and as such are not subject to discovery.
The United States strongly objects to this and all related
discovery requests that seek information on how EPA used the BEN
model to estimate MPC’s economic benefit of noncompliance for
purposes of settling this lawsuit. Further, except to the
extent such information has been released by the United States to
MPC as part of settlement negotiations, or it was ordered to
release the information because it failed to timely claim an
applicable privilege, all economic benefit analyses performed to
date for settlement are protected by the attorney-client and
attorney work product privileges.
15. How did Plaintiff select this “non-compliance” date?
ANSWERI Objection. See Answer No. 14.
16. Please identify each of the witnesses who Plaintiff
intends to present as witnesses on the BEN model and any related
calculations thereunder.
ANSWER : Objection. See Answer No. 14. Without waiving these
objections, at this time, the United States does not expect to
present witnesses on the BEN model or calculations thereunder,
since the BEN model and calculations are done pursuant to
settlement only. At trial, pursuant to the factors that a court

-------
— 10 —
is directed to consider in determining a civil penalty
assessment, Section 309(d) of the Act, 33 U.S.C. 1319(d), the
United States expects to present to the court an individualized
expert analysis on Defendant Menominee Paper Company’s economic
benefit of noncompliance. This analysis, while consistent with
the principles of the BEN model, may not be identical to that set
forth in the BEN User’s Manual.
17. Please identify which of these witnesses will be
“expert” witnesses.
ANSWER : Objection. See Answer No. 16.
Respectfully submitted,
David A. Nm in
Attorney/Advisor
U.S. Environmental Protection Agency
401 M. Street, S.W. (LE—134W)
Washington, D.C. 20460
(202) 475—8547
DANIEL S. JACOBS
Trial Attorney
Land and Natural Resources Division
U.S. Department of Justice
Environmental Enforcement Section
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633—4076
JOHN SMIETANKA
United States Attorney
Western District of Michigan

-------
— 11 —
THOMAS J. GEZON
Chief Assistant U.S. Attorney
339 Federal Building
Grand Rapids, Michigan 49503
OF COUNSEL:
Nicholas 20110
Assistant Regional Counsel
U.S. Environmental Protection
Agency, Region V
230 S. Dearborn Street
Chicago, Illinois 60604

-------
WASHINGTON,
DISTRICT OF COLUMBIA
David A. Hindin, Attorney—Advisor, being duly sworn, states that
he is an attorney for the U.S. Environmental Protection Agency
and that while he does not have personal knowledge of all the
facts recited in the foregoing Responses to Interrogatories, the
information contained in such Answers has been collected and made
available to him by others, and the Answers are true to the best
of his knowledge and belief based on the information made
available to him, and that the United States’ Responses to
Defendant Menominee Paper Company’s Fifth Request For Production
of Documents and Seventh and Eighth Interrogatories are verified
on behalf of the Plaintiff in this litigation.
avid A. Hindin
Attorney/Advisor
SUBSCRIBED AND SWORN to before me, a notary public, this
19th day of March, 1990.
My Commission Expires:
qq3
c. A L.
t\ \ \ e r
Notary Public Residing in
County
C)

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff, ) Case No. M88—]08 CA2
(Previously consolidated
v. ) with Case No. M88—107 CA2)
MENOMINEE PAPER COMPANy, INC.,)
) JUDGE HILLMA1q
and
BELL PACKAGING CORPORATION,
Defendants.
UNITED STATES OF AMERICA’S RESPON
TO DEFENDANT’S FIFTH REOUEST FQR
PRODUCTION OF DOCUMENTS
Plaintiff, the United States of America, pursuant to
Rules 26 and 34 of the Federal Rules of Civil Procedure, hereby
responds and objects as follows to Defendant’s Fifth Request for
the Production of Documents.
GENERAL OBJECTIONS
The United States objects generally to each of Defendant’s
requests for the production of documents to the extent that it is
vague, overbroad, and burdensome; seeks information not relevant
to the subject matter of these actions or not reasonably
calculated to lead to the discovery of admissible evidence; or
seeks information that is protected by the attorney—client
privilege, the deliberative process privilege, or the qualified
immunity for litigation/attorney work product. By responding in

-------
—2—
full or in part to any of the requests for production served upon
it, the United States does not waive any objections.
RESPONSES TO REqUESTS FOR PRODUCTION
REQUEST NO. 1 RESPONSE : Objection. The United States objects to
this request for production on the grounds such documents are not
related to the subject matter of this litigation. Further, draft
revisions of the BEN User’s Manual are internal Agency drafts
protected by the deliberative process privilege. Thus, the
United States objects to this request as seeking information
protected by the deliberative process privilege. See attached
affidavit of James M. Strock, Assistant Administrator for
Enforcement and Compliance Monitoring. A list of privileged
documents withheld is also attached. Further, the United States
objects to this request as being overbroad and burdensome.
REOUEST NO. 2 RESPONSE : Objection. The United States objects to
this request for production on the grounds that it seeks
information that could not lead to the discovery of admissible
evidence. See generally, Rule 408, Fed. R. Evid. All BEN
calculation computer runs that have been performed in this
litigation have been done for purposes of establishing a
settlement penalty only and as such are not subject to discovery.
Further, except to the extent such information has been released
by the United States to Defendant I4enominee Paper Company as part

-------
—3—
of settlement negotiations, all economic benefit analyses
performed in support of a potential settlement are protected by
the attorney-client privilege or the qualified immunity for
attorney work product. Further, the United States objects to
Defendant’s request for a detailed list of documents withheld
because a list of privileged documents itself would give
Defendant access to certain confidential settlement information
that is not discoverable, and otherwise protected by the attorney
client privilege, and the qualified immunity for attorney work
product.
REQUEST NO. 3 RESPONSE : Objection. The gravity calculation
factor that Defendant Menominee Paper Company is requesting is
done pursuant to EPA’s February 11, 1986, Clean Water Act Penalty
Policy for Civil Settlement Negotiations . The United States
objects to this request on the grounds that it is seeking
information that could not lead to the discovery of admissible
evidence. See generally, Rule 408, Fed. R. Evid. Further, the
United States strongly objects to this request because how the
United States calculated or will calculate a civil settlement
penalty amount, including the gravity factor calculation, is
completely outside the scope of discovery. Further, except to
the extent such information is released by the United States to
Defendant as part of settlement negotiations, all gravity factor
calculations that EPA performed in support of a potential

-------
—4—
settlement are protected by the attorney-client privilege or the
qualified immunity for attorney work product. In addition,
the United States objects to Defendant’s request for a detailed
list of documents withheld because a list of privileged documents
itself would give Defendant access to certain confidential
settlement information that is not discoverable, and otherwise
protected by the attorney client privilege, and the qualified
immunity for attorney work product.
REQUEST NO. 4 RESPONSE : Objection. The United States objects to
this request as overbroad and vague. Without waiving these
objections, assuming the term “articles” refers to published
articles, the United States in not aware of any published
articles.
REQUEST NO. 5 RESPONSE : Objection. The United States objects to
this request as overbroad and vague. Without waiving this
objection, assuming the term “articles” refers to published
articles, the United States in not aware of any published
articles.
REOUEST NO. 6 RESPONSE : Objection. The United States objects to
this request as overbroad. Further, the United States objects
to this request in that it seeks information on attorneys (i.e.,
David Hindin and Jonathan Libber) or of non—testifying expert

-------
—5—
consultants (i.e., Gail Coad) participating in this litigation
for the United States. Without waiving these objections, the
United States will produce the job descriptions of those federal
employees whose depositions are actually to be taken prior to the
employee’s deposition. The job description for Gerald Hellerman
will be available for inspection and copying, as requested by
Defendant, on March 21, 1990, at the Department of Justice,
Environmental Enforcement Section, Washington, D.C. during normal
business hours.
REQUEST NO. 7 RESPONSE Objection. The personnel folders are
part of a system of records maintained under the Privacy Act, S
U.S.C. §552 et seq . Information from such files may not be
disclosed except in limited circumstances not covered by this
litigation. Furthermore, none of personnel files of any of the
federal employees associated with this case contain any reference
to the Menominee Paper Company or this litigation. In addition,
the United States objects that this request is burdensome,
overbroad, and seeks information neither relevant to the subject
matter of these actions nor reasonably calculated to lead to the
discovery of admissible evidence.
REOUEST NO. 8 RESPONSE : A copy of the requested document is
available for defendant’s inspection and copying at the offices

-------
—6—
of the U.S. EPA, 111 West Jackson, 3rd floor, Chicago, Illinois,
on March 21, 1990, at 10:00 am as requested.
Respectfully submitted,
3 /‘ (q C __
avid A. Hindin
Attorney/Advisor
U.S. Environmental Protection Agency
40]. M. Street, S.W. (LE-134W)
Washington, D.C. 20460
(202) 475—8547
DANIEL S. JACOBS
Trial Attorney
Land and Natural Resources Division
U.S. Department of Justice
Environmental Enforcement Section
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633—4076
JOHN SMIETANKA
United States Attorney
Western District of Michigan
THOMAS J. GEZON
Chief Assistant U.S. Attorney
]39 Federal Building
Grand Rapids, Michigan 49503
OF COUNSEL:
Nicholas Bollo
Assistant Regional Counsel
U.S. Environmental Protection
Agency, Region V
230 S. Dearborn Street
Chicago, Illinois 60604

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERJq DIVISION
UNITED STATES OF AMERICA,
Plaintiff, ) Case No. M88-108 CA2
(previously consolidated
v. ) with Case No. M88-107 CA2)
)
MENOMINEE PAPER COMPANY, INC.,)
JUDGE HILLMAN
and
BELL PACKAGING CORPORATION,
Defendants.
AFFIDAVIT
I, James M. Strock, do hereby swear and affirm the following:
1. I am the Assistant Administrator for Enforcement and
Compliance Monitoring for the United States Environmental.
Protection Agency (“U.S. EPA”). Pursuant to the October 3, 1984,
delegation from the Administrator of the U.S. EPA, (Delegations,
§ 1-49, Attachment A to this Affidavit), I am the U.S. EPA
official authorized to assert the privilege described herein.
2. Pursuant to EPA Delegations, §1-49, I have obtained the
concurrence of the U.S. EPA General Counsel in asserting the
deliberative process privilege in this case for the purposes
discussed herein.
3. The BEN model was devised to calculate the economic
benefit a given company has received as a result of violations of
any non-CERCLA environmental statute. The Agency uses the BEN
computer model to assist its own staff in estimating certain
economic benefits an organization may have received from delaying
its compliance with environmental regulations. Estimating
economic benefit using the BEN computer model is generally the
first step in developing a civil settlement penalty figure under
the Agency’s February 16, 1984, Policy on Civil Penalties (EPA
General Enforcement Policy, # GM-2l) and the related media
specific policies developed since then to implement the 1984
Policy. The BEN computer model has been developed by the Agency
to assist the Agency in fulfilling the deterrence goals of its
Policy on Civil Penalties, specifically to recover, at a minimum,
the economic benefit from noncompliance, plus an additional
amount, to ensure that members of the regulated community have a
strong economic incentive to comply on time with environmental

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—2—
laws. The BEN manual, last revised in May 1987, which contains
the BEN model, is freely available to the public upon request.
All references to the BEN model herein include the BEN Manual,
which details the formulas and theory used in the BEN computer
model.
4. The United States of America, by and through its
entity, the EPA, asserts the privilege of deliberative process
with respect to any deposition questions, interrogatories,
requests for documents, requests for admissions, or any other
discovery related inquiries regarding potential changes to the
BEN model, the advisability of changing the BEN model, or any
draft revisions of the BEN model.
5. I have personally reviewed the issues regarding the
advisability of and potenti 1 str te es for revi on of th.e BE
model - .. 4 s est o ’,p 9 r _____
6. It is my best judgment that disclosing any information —
regarding possible revisions in the current BEN model, or
regarding any development of a new BEN model, would prematurely
reveal and inaccurately reflect the views of the Agency. The
question of whether to revise the BEN model, and if so, how to
revise it, are part of current Agency deliberations, and as such,
are protected from public disclosure. Additionally, premature
public disclosure of potential changes to the model could impact
the ability of the Agency to effectively conduct non-CERCLA
enforcement actions. SUCh disclosure would therefore cause
identifiable harm to the public interest and should be prevented.
7. In addition, disclosure of internal staff comments on
drafts of the proposed model revisions, as well as disclosure of
the drafts themselves, would impede our ability to openly discuss
the merits and specifics of how we should revise the model.
Without such open discussions we will be unable to evaluate
effectively the need to revise the model, to make any necessary
revisions, and thus to produce a BEN model and manual that puts
the Agency i T t the best position to estimate and collect the full
amount of economic benefit a violator has obtained from its
noncompliance with the law. In order to protect the public
interest in environmental compliance, the Agency has determined
that it is necessary to estimate and then recover, at a minimum,
the economic benefit a violator has obtained from its noncom-
pliance, plus an additional amount to ensure that members of the
regulated community have a strong economic incentive to comply on
time with •nvironmental laws. I believe that disclosure of the
Agenoy’s deliberations on how to estimate a violator’s economic
benegit of noncompliance, through possible revisions to the BEN

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model and manual, would hinder our ability to protect the public
interest in environmental, compliance.

James M. Strock
Assistant Administrator for Enforcement
and Compliance Monitoring, U.S. E.P.A.
Signed and sworn to before me this _____ day ______
1990.
X L
My Comm;ss.on c.*pues Z: ii. hi

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1 200
GD AL. ADIINISTRArIVE, M ID MISCELL?IN
Assertion of t1* liberative Pr ess Privi1e
1. ALm1C I1? . sert the deitherative ocees ivilege in judicial a
TlinistT5t3ve litigation with reepect to c iients, portions of Cu ents, or
other materials within tl control, of t ger y.
2. T 4OI CEIZGATED . puty ninistrator, Auistant & inistrators, General
C sel, Inspector General, Associate Administrators, ar Regional Mn%inistrators.
3. LI1lIVTtalS . All delegatees Isist obtain t) currence of the General
CoLmsel before assertirç the deliberative pnxess privilege.
4. REEI TIQI AL7I i 1T’f . This authority may not be redelegated.
5. A ITIQ AL REFER!N .
a. Rule 501, Federal Rules of Eviderre;
b. Rule 26, P deral Rules of Civil Procedure; az i
c. See the Menorandi ,r of Au ist , 1984, fra i Wi1li D. Rucke].shaus,
ninistratcr, to Assistant Administrators, General C ansel • Inspector General,
Associate ministrators , and Regional Administrators entitled Q.aidarre for
Meertion r*liberative Process Privilege.

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Attachment A to Response to Document Request 1 5
LIST OF DOCUMENTS WITHHELD
PURSUANT TO THE DELIBERATIVE PROCESS PRIVILEGE
IN RESPONSE TO MENOMINEE PAPER COMPANy’S
FIFTH REQUEST FOR PRODUCTION OF DOCUMENTS, #1L 2
1. Edited Version of BEN User’s Manual (May 1987 finalj.
Dated June 1988 or 1989. Existing BEN User’s Manual with
handwritten comments for possible revision.
2. Edited Version of BEN User’s Manual (May 1987 finafl.
Dated February 1989. Existing BEN User’s Manual with
handwritten comments for possible revision.
3. Draft BEN User’s Manual
Dated 5-5-89. With handwritten comments, probably by
Jonathan Libber.
4. Draft BEN User’s Manual .
Dated 5—5-89. 31 pages of draft BEN User Manual pages with
extensive handwritten comments by David Hindin regarding the
use of BEN, issues that arise when using BEN, and how to
effectively use BEN.
5. Draft BEN User’s Manual
Dated 7-89. 159 page document with extensive handwritten
comments regarding the use of BEN, issues that arise when
using BEN, and how to effectively use BEN.
6. Draft BEN User’s Manual
Dated 7-4-89. 43 pages of 5-5—89 draft BEN User’s Manual
pages with extensive handwritten comments by David Hindin
regarding the use of BEN, issues that arise when using BEN,
and how to effectively use BEN.
7. Draft BEN User’s Manual
Dated 9-11-89. 95 page document with extensive handwritten
comments by Susan Cary Watkins (dated 11-30-89) regarding
the use of BEN, issues that arise when using BEN, and how to
effectively use BEN.
Document request 1 reads in its entirety: “Any draft
revisions to the BEN User’s Manual, including the most recent
draft, developed by the U.S. Environmental Protection Agency or
its consultants after June 1, 1987.”
Unless otherwise noted, primary authors of all documents
are Jonathan Libber and/or Gail Coad.

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—2—
8. Draft BEN User’s Manual
Dated 9-11-89. 95 page document with extensive handwritten
comments by Bob Greene regarding the use of BEN, issues that
arise when using BEN, and how to effectively use BEN.
9. Draft BEN User’s Manual
Dated 1-26-90. 160 page document with extensive hand-
written comments by Susan Cary Watkins regarding the use of
BEN, issues that arise when using BEN, and how to
effectively use BEN.
10. Draft BEN User’s Manual
Dated 1-26-90. 160 page document with some handwritten
comments.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
UNITED STATES OF AMERICA,
Plaintiff,
CIVIL ACTION NO. 87-24
v.
)
F.B. PURNELL SAUSAGE COMPANY, INC.,
)
Defendant.
)
UNITED STATES’ FIRST REQUEST FOR ADMISSIONS
Plaintiff, the United States of America, pursuant to
Rule 36 of the Federal Rules of Civil Procedure, requests
Defendant F.B. Purnell Sausage Company, Inc. ( “Purnell Sausage’),
to admit the truth of the following matters within 30 days after
service of this request.
DEFINITIONS
A. “Purnell Sausage’ shall refer to Defendant F.B.
Purnell Sausage Company, Inc.
B. “EPA’ shall refer to the United States
Environmental Protection Agency.
C. “D) ” shall refer to discharge monitoring reports.
D. “Simpsonville Plant’ shall refer to Purnell
Sausage’s meat processing facility at Simpsonyille, Kentucky.
E. “NPDES ” means the National Pollut&nt Discharge
Elimination System.
F. “MGD” means million gallons per dày.

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G. The term “BOD5 ’ means 5 day Biochemical oxygen
Demand.
H. The term “TSS” means Total Suspended Solids.
I. The term “mg/i” means milligrams per liter.
J. The term ‘lbs/day” means pounds per day.
K. The term “N.R.’ means not reported.
REOUEST FOR ADMISSIONS
1. Purnell Sausage is a “person” as defined in Section
502(5) of the Act, 33 U.S.C. § 1362(5).
2. At all times since EPA issued an NPDES permit with
respect to the Simpsonville plant, Purnell Sausage owned and
operated the Simpsonville plant.
3. At all times from January 1982 to the present, the
Simpsonville plant discharged wastewater into a drainage ditch or
unnamed tributory which flows into the Little Buliskin Creek.
4. Little Bullskin Creek, at the location at which
Purnell Sausage discharged and discharges wastewater, is a
“navigable water” as defined in Section 502(7) of the Act, 33
U.S.C. § 1362(7).
5. At all times from January 1982 to the present, the
effluent discharged from the Simpsonville plant contained
“pollutants’ within the meaning of Section 502 (6) of the Act, 33
U.S.C. § 1362(6).
6. On October 26, 1981, EPA issued to Purnell Sausage
NPDES Permit No. 1 (10001309 for the Simpsonville Plant, effective
November 30, 1981.

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7. Exhibit A is a true and accurate copy of the
November 30, 1981, NPDES permit for the Simpsonvi l le plant.
8. On November 12, 1985, EPA issued to Purnell Sausage
Administrative Order 86-017, a true and accurate copy of which is
attached hereto as Exhibit B.
9. During the following periods of time, Purnel].
Sausage discharged pollutants containing the following calendar
monthly average quantities of 5 day biochemical oxygen demand
(“BOD 5 ”) and daily maximum quantities of BOD 5 into the drainage
ditch or unnamed tributary flowing to Little Bullskjn Creek from
the Simpsonvil].e plant or failed to report any quantities where
noted:
Monthly Average B aD 5 Daily Maximum BOD 5
Period Loading quantity (lbs/day) Quantity (lbs/day )
a. 1982
(1) January 10.6 19.5
(2) February 4.5 7.0
(3) March 5.7 20.6
(4) April 30.4 42.8
(5) May 43.5 106.3
(6) June
(7) July 6.2 22.8
(8) August 5.3 13.6
(9) September 10.8 36.9
(10) October 5.4 16.3
(11) November 8.5 28.2
(12) December 4.2 27.1.

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b. 1983
(1) January 10.8 10.8
(2) February 10.8 10.8
(3) March 10.8 10.8
(4) April 14.0 58.0
(5) May 14.0 58.0
(6) June 14.0 58.0
(7) July 8.7 36.3
(8) August 8.7 36.3
(9) September 8.7 36.3
(10) October 9.76 18.4
(11) November 9.76 18.4
(12) December 9.76 18.4
c. 1984
(1) January 10.4 20.5
(2) February 6.7 13.1
(3) March 9.9 19.5
(4) April 4.9 7.7
(5) May 2.5 5.7
(6) June 11.7 20.3
(7) July 3.22 9.57
(8) August
(9) September 6.04 7.91
(10) October 4.8 7.0
(11) November 6.85 10.97
(12) December 8.1 12.5
d. J j
(1) January 10.6 16.1
(2) February 10.8 15.9
(3) March 10.5 15.4
(4) April 12.4 17.6
(5) May 6.0 11.3
(6) June 34.4 57.3
(7) July - 23.2 33.8
(8) August 81.7 147.1
(9) September 66.8 138.5
(10) October 55.8 102.2
(11) November 10.5
(12) December

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e. 1986
(1) January
(2) February a.i. 14.2
(3) March 10.5 16.6
(4) April N.R. N.R.
(5) May H.R. N.R.
(6) June 311 525
(7) July 98.5 402
(8) August 287 793
(9) September 94 212.22
(10) October
(11) November 15.4 20.7
(12) December 24.7 54.3
f. 1987
(1) January 29.3 65
(2) February 49.09 66.57
(3) March 25.71 60.6
(4) April 39.02 90.7
(5) May 23.41 64.08
(6) June ii.i 20.98
(7) July 11.48
(8) August 6.6 13.84
(9 September
10. During the following periods of time, Purnell
Sausage discharged pollutants containing the following calendar
monthly average quantities of oil and grease and daily maximum
quantities of oil and grease into the drainage ditch or unnamed
tribuatary flowing to Little Bullskirt Creek from the Siinpsonville
plant or failed to report any quantities where noted:

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Monthly Average Oil/Grease Daily Maximum Oil/Grease
Loading Quantity (lbs/pail Quantity (1bs/day
Period
a. 1982
(1) January 2.4 7.5
(2) February 3.8 7.6
(3) March 2.2 3.0
(4) April 6.0 10.4
(5) May 7.4 15.9
(6) June 2.6 5.0
(7) July 2.0 3.6
(8) August 1.2 2.6
(9) September 1.8 2.9
(10) October 2.0 2.9
(11) November 5.0 16.2
(12) December 3.1 4,9
b. 1983
(1) January 3.0
(2) February 3.0
(3) March 3.0
(4) April 1.9 3.9
(5) May 1.9 3.9
(6) June i.g 3,9
(7) July 2.9 4.0
(8) August 2.9 4.0
(9) September 2.9 4.0
(10) October N.R. N.R.
(11) November N.R. N.R.
(12) December N.R. N.R.
C. 1984
(1) January N.R. N.R.
(2) February N.R. N.R.
(3) March M.R. N.R.
(4) April-
(5) May
(6) June 2.16 3.64
(7) July
(8) August 1.57
(9) September
(10) October
(11) November
(12) December

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d. .l.21
(1) January
(2) February
(3) March N.R. N.R.
(4) April
(5) May 1.2
(6) June 17.2
(7) July 7.0 12.3
(8) August 1.4 3•9
(9) September 4.3 79
(10) October 3.7 8.7
(11) November
(12) December
e. 1986
(1) January
(2) February
(3) March
(4) April
(5) May N.R. N.R.
(6) June N.R. N.R.
(7) July
(8) August
(9) September
(10) October
(11) November
(12) December
11. During the following periods of time, Purnell
Sausage discharged pollutants containing the following calendar
monthly average quantities of total suspended solids (TSS”) and
daily maximum quantities of TSS into the drainage ditch or
unnamed tributary flowing to Little Buliskin Creek from the
Simpsonville plant or failed to report any quantities where
noted:

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—8—
Monthly Average TSS Daily Maximum TSS
Loading Quantity (lbs/day) Quantity (lbs/day)
Period
a. 1982
(1) January 10.6 19.5
(2) February 4.5
(3) March 5.7 20.6
(4) April 30.3 42.6
(5) May 43•5 106.3
(6) June
(7) July 6.2 22.8
(8) August 5.3 13.6
(9) September 10.8 36.9
(10) October 5.4 16.2
(11) November 8.5 28.2
(12) December 4.2 27.1
b. 1983
(1) January 10.8 39.0
(2) February 10.8 39.0
(3) March 10.8 39.0
(4) April 14.1 58.0
(5) May 14.1 58.0
(6J June 14.1 58.0
(7) July 8.7 36.3
(8) August 8.7 36.3
(9) September 8.7 36.3
(10) October 9.8 18.4
(11) November 9.8 18.4
(12) December 9.8 18.4
c. 1984
(1) January 10.2 24.3
(2) February 4.9 11.7
(3) March 12.6 25.7
(4) April- ‘12.1 20.8
(5) May 7.6 11.5
(6) June 8.64 17.7
(7) July 12.9 18.2
(8) August 6.29 10.0
(9) September 10.9 14.9
(10) October 16.4 24
(11) November 12.9 27.6
(12) December 18.96 43

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—9—
d. 1985
(1) January 16.4 36.1.
(2) February 14.9 34.6
(3) March 19.8 48
(4) April 12.8 42.9
(5) May 16.1 30.8
(6) June 262.5 439•7
(7) July 328.9 794.9
(8) August 363 529.6
(9) September 343•5 484.7
(10) October 167.5 327.2
(11) November 78.1 167.3
(12) December
e. 1986
(1) January
(2) February 8.1 14.2
(3) March 10.5 16.6
(4) April N.R. N.R.
(5) May N.R. N.R.
(6) June 89 195
(7) July 55 97.1
(8) August 86.51 166
(9) September
(10) October
(11) November
(12) December
12. During the following periods of time, Purnel].
Sausage discharged pollutants containing the following calendar
monthly average concentrations and daily maximum concentrations
of fecal coliform into the drainage ditch or unnamed tributary
flowing to-Little Bullskirt Creek from the Simpsonvil].e plant or
failed to report any quantities where noted:

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Monthly Average Fecal Coliform Daily Maximum Feca]. Co1ifor
Concentration (numberllppmfl Concentration (number/bc ml )
Period
a. 1982
(1) January 230 430
(2) February
(3) March
(4) April 622.5 2,400
(5) May 345 930
(6) June
(7) July 622.5 2,400
(8) August 236 750
(9) September
(10) October
(11) November 430
(12) December 772.5 2,400
b. 1983
(1) January 281 1,500
(2) February 281 1,500
(3) March 281 1,500
(4) April 430
(5) May 430
(6) June 430
(7) July 4,600
(8) August 4,600
(9) September 4,600
(10) October 11,000
(11) November 11,000
(12) December 11,000
c. 1984
(1) January 1,140 11,000
(2) February 949 11,000
(3) March 620 11,000
(4) April
(5) May 938 4,600
(6) June
(7) July
(8) August
(9) September
(10) October 740 11,000
(11) November 460 11,000
(12) December 11,000

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— 11 —
d. 19
(1) January
(2) February
(3) March
(4) April N.R. N.R.
(5) May N.R. N.R.
(6) June 15,000 20,000
(7) July 40,000 40,000
(8) August
(9) September 1509 3,000
(10) October
(11) November 600
(12) December 1777 4,300
e. 1987
(1) January 226 440
(2) February
(3) March 381.5 1,200
(4) April
(5) May 239 420
(6) June 326.5
(7) July
(8) August
(9) September
13. During the following periods of time, Purnell
Sausage discharged pollutants containing the following calendar
monthly average concentrations and daily maximum concentrations
of ammonia into the drainage ditch or unnamed tributary flowing
to Little Buliskin Creek from the Simpsonvjl le plant or failed to
report any quantities where noted:

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— 12 —
Monthly Average Ammonia Daily Maximum Ammonia
Concentrations (ma/i) Concentrations (mg/i)
Period
a. 1982
(1) January M.R. N.R.
(2) February N.R. N.R.
(3) March N.R. N.R.
(4) April N.R. N.R.
(5) May N.R. N.R.
(6) June N.R. N.R.
(7) July N.R. N.R.
(8) August N.R. N.R.
(9) September N.R. N.R.
(10) October N.R. N.R.
(11) November N.R. N.R.
(12) December N.R. N.R.
b. 1983
(1) January N.R. N.R.
(2) February N.R. N.R.
(3) March N.R. N.R.
(4) April N.R. N.R.
(5) May N.R. N.R.
(6) June N.R. N.R.
(7) July N.R. N.R.
(8) August N.R. N.R.
(9) September N.R. N.R.
(10) October N.R. N.R.
(1].) November N.R. M.R.
(12) December 22.8 39.3
c. 1984
(1) January 23 38
(2) February 26 35
(3) March. 33 38
(4) April 32 36
(5) May 32.4 35
(6) June 31.2 36.1
(7) July
(8) August 5.6 16.4
(9) September 19.2 22.8
(10) October
(11) November 4.2
(12) December 24.7 40.7

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— 13 —
d. 1985
(1) January 26.5 35.1
(2) February 25.3 343
(3) March 24.4 33.3
(4) April 28.2 34.3
(5) May 18.1 21.7
(6) June 12.4 14.6
(7) July 9.9 12.7
(8) August 10.6 15.5
(9) September 8.2 12.5
(10) October
(11) November 2.19
(12) December 2.3 4.3
e. 1986
(1) January 3.7
(2) February 3.8
(3) March 2.5 3.9
(4) April N.R. N.R.
(5) May N.R. N.R.
(6) June 20 23
(7) July 10.3 23
(8) August 11.6 13.2
(9) September
(10) October
(11) November
(12) December 2.8 8
f. 1987
(1) January 2.4 3.6
(2) February 11.4 23
(3) March 16 20
(4) April 26.2 30
(5) May 15.3 24
(6) June
(7) July • 2.87 5.11
(8) August 8.3 9.51
(9) September
14. During the following periods of time, Purnell
discharged pollutants containing the following calendar monthly
average quantities of dissolved oxygen into the drainage ditch or
unnamed tributary to Little Bullskin Creek from the Simpsonvi lle
plant or failed to report any quantities where noted:

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— 14 —
Dissolved oxygen (mg/fl
Period
a. 1982
(1) January 2.0
(2) February 6.5
(3) March 2.8
(4) April 1.1
(5) May 4.0
(6) June 6.5
(7) July 6.2
(8) August 5.4
(9) September
(10) October
(11) November
(12) December
b. 1983
(1) January 1.1
(2) February 1.1
(3) March 1.1
(4) April 1.3
(5) May 1.3
(6) June 1.3
(7) July 3.3
(8) August 3.3
(9) September 3.3
(10) October 3.0
(11) November 3.0
(12) December 3.0
c. 1984
(1) January
(2) February
(3) March 5.7
(4) April.. 6.4
(5) May 6.6
(6) June 6.9
(7) July 5.1
(8) August 5.5
(9) September 5.7
(10) October 6.9
(11) November
(12) December

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— 15 —
d. 1985
(1) January
(2) February
(3) March
(4) April
(5) May
(6) June
(7) July 6.9
(8) August 6.9
(9) September 6.8
(10) October
(11) November
(12) December
e. 1986
(1) January
(2) February
(3) March
(4) April N.R.
(5) May N.R.
(6) June 3.2
(7) July 4.8
(8) August 4.2
(9 September 4.8
(10) October
(11) November
(12) December
f. 1987
(1) January
(2) February
(3) March
(4) April 5.8
(5) May 5.8
(6) June
(7) July - 5.2
(8) August 5.9
(9) September
15. Each of the Discharge Monitoring Reports attached
hereto as Exhibit C was made at or near the time of the acts,
- events, or conditions recorded therein, by, or from information
transmitted by a person with knowledge of those acts, events, or
conditions.

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— 16 —
16. Each of the Discharge Monitoring Reports attached
hereto as Exhibit C was made in the regular course of Purneli.
Sausage’s business activity.
17. with respect to each of the Discharge Monitoring
Reports attached hereto as Exhibit C, it was the regular practice
of Purnell Sausage to make such a document.
18. Each of the Discharge Monitoring Reports attached
hereto as Exhibit C was sent to the Environmental Protection
Agency at or about the time of the preparation of the document.
19. With respect to each of the Discharge Monitoring
Reports attached hereto as Exhibit C, the figures recorded on the
document as representing the amount or concentration of
pollutants discharge by Purnell Sausage were, in fact, the amount
or concentration of pollutants that actually were discharged.
20. Exhibit D attached hereto is a genuine copy
(excluding the handwritten notations) of a summary of effluent
data for discharges from the Simponville plant for January
through December 1982, prepared for Purnell Sausage.
21. Exhibit D was prepared by Purnell Sausage’s
consultant at that time, Environmental Management, Inc.
22. The typed numerical values reported in Exhibit D
attached hereto are true and correct. If defendant admits that
only some of the values reported in Exhibit D are true and
correct, please state specifically which values are so admitted
and which are not.

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— 17 —
23. Purnel]. Sausage did not submit Discharge
Monitoring Reports for the Simpsonvil].e plant reporting effluent
data for the months of April and May 1986.
24. Purnell Sausage did not take samples and report
the values for the pollutants listed in its permit, Exhibit A
attached hereto, for the period of June 1-14, 1986.
25. Purnell Sausage did not take samples and report
the values for the pollutants listed in its permit, Exhibit A
attached hereto, for the period of October 5, 1986 through
November 1, 1986.
26. Each document attached hereto is a true and
correct copy of the original document.
27. All documents provided to the United States in
response to the United States’ First Request for Production of
Documents are true and accurate copies of authentic documents
from Purriell Sausage’s files.
Respectfully submitted,
LOUIS G. DeFALAISE
United States Attorney
Eastern District of Kentucky
FRZDERICK A. STINE, V.
Assistant United States Attorney
P.O. Box 1490
Lexington, Kentucky 40591
Tel.: (606)233—266].

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ROB RT D. BROOK
Attorney
Environmental Enforcement Section
U.S. Department of Justice
P.O. Box 761].
Ben Franklin Station
Washington, D.C. 20044
Tel.: (202)633—3906
OF COUNSEL:
STEDMAN S. SOUTHALL
Assistant Regional Counsel
U.S. Environmental Protection
Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUC
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Response : Defendant admits that the discharge from Purnell’s wastewater
treatment plant as currently located adjacent to the Siinpsonville P01W
discharges into a navigable water of the U.S. as defined In 33 u.s.c.
§1362(7). Defendant states that after reasonable inquiry of its records, the
information known or readily obtainable by Purnell is insufficient to enable
it to admit or deny that the prior point of discharge was into navigable
waters of the U.S. Purnell is uncertain as to the effect on the
classification as “navigable waters” of an existing lake owned by Purnell at
the tine of original permitting of their wastewater discharge and Into which
Purnell’s discharge flowed.
Request No. 5 : At all times Prom January 1982 to the present, the
effluent discharged from the Si sonvi1le plant contained “pollutants” within
the meaning of Section 502(6) of the Act, 33 U.S.C. §1362(6).
Response : After reasonable inquiry into its records, Purnell states that
it is without sufficient information to either admit or deny that at “all
times from January 1982 to the present” the effluent discharged from the
Simpsonville plant contained “pollutants” within the meaning of Section 502(6)
of the Act, 33 U.S.C. §1362(6). Purnell. denies that at “all times from
January 1982 to the present” the “Simpsonville plant” discharged “pollutants”
in nonprocess, storm, ground or surface water. Purnell admits that at certain
times test data indicates that it discharged “pollutants” from its wastewater
treatment plant.
Request No. 6: 1 October 26, 1981, EPA issued to Purnell Sausage NPDES
Permit No. KY0001309 for the Sinpsonvllle plant, effective November 30, 1981.
Response : Defendant admits that on October 26, 1981, the United States
Environmental Protection Agency (U.S. E.P.A.) issued to Purriell Sausage NPDES
Permit No. KY0001309 for the Simpsonvilie plant, effective November 30, 1981,
for outfall 001.
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Request No. 7 : Exhibit A is a true and accurate copy of the November 30,
1981 NPCES permit for the Simpsonvjlle plant.
Response : Defendant admits that Exhibit A Is a true and accurate copy of
the permit contained in Purnell’s files.
Request NO. 8 : On November 12, 1985, EPA issued to Purnell Sausage
Administrative Order 86—017, a true and accurate copy of which Is attached
hereto as Exhibit B.
Response : Defendant admits that Exhibit B is a true and accurate copy of
what was sent to Purnell on or about November 15, 1985 and described as
Administrative Order 86—017.
Request No. 9 : During the following periods of time, Purnell Sausage
discharged pollutants containing the following calendar monthly average
quantities of 5 day biochemical oxygen demand (“BOO “) and daily maximun
5
quantities of BOO into the drainage ditch or unnamed tributary flowing to
5
Little Bullskin Creek from the Simpsonvll].e plant or failed to report any
quantities where noted. ( jmerica1 values are not reproduced here.)
Response : Defendant states that after reasonable inquiry of Its records,
the information known or readily obtainable by Purne],l is insufficient to
enable It to either admit or deny this request. Defendant notes that its
discharge monitoring reports contained concentration based data and did not
report in poundages as referenced In the question. See also Defendant’s
Answers to Interrogatories. Defendant has no record of discharge monitoring
reports for April and May, 1986, as noted in the question by “N.R.” Further
admissions requested by number 9 are denied.
Request No. 10 : During the following periods of time, Purnell Sausage
discharged pollutants containing the following calendar monthly average
quantities of oil and grease and daily maxinum quantities of oil and grease
—3—
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into the drainage ditch or unnamed tributary flowing to Little Bullskin Creek
from the S1n sonville plant or failed to report any quantities where noted.
(Nulierical values are not reproduced here.)
Response : Defendant states that after reasonable inquiry of its records,
tne information known or readily obtainable by Purnell is insufficient to
en b1e it to either admit or deny this request. Defendant notes that Its
discharge monitoring reports contained concentration based data and did not
report in poundages as referenced in the question. See also Defendant’s
nswers to Interrogatories. Defendant has rio record of discharge monitoring
reports for May and the first half of June, 1986, as noted In the question by
“N.R.” Further admissions requested by nuuber 10 are denied.
Request No. 11 : During the following periods of’ time, Purnell Sausage
discharged pollutants containing the following calendar monthly average
quantities of total suspended solids (“TSS”) and daily maximum quantities of
TSS into the drainage ditch or unnamed tributary flowing to Little Buliskin
Creek from the Simpsonville plant or failed to report any quantities where
noted. (Numerical values are not reproduced here.)
Response : Defendant states that after reasonable inquiry of its records,
the information known or readily obtainable by Purnell is insufficient to
enable it to either admit or deny this request. Defendant notes that its
discharge monitoring reports contained concentration based data and did not
report in pou-dages as referenced in the question. See also Defendant’s
Answers to Interrogatories. Defendant has no record of discharge monitoring
reports for April and May, 1986, as noted in the question by “N.R.” Further
admissions requested by nunber 11 are denied.
Request No. 12 : Diring the following periods of time, Purnell Sausage
discharged pollutants containing the following calendar monthly average
-4—
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concentrations and daily maximum concentrations of fecal. coliform into the
drainage ditch or unnamed tributary flowing to Little Bullskin Creek from the
Simpsorivjl]e plant or failed to report any quantities where noted. (Numerical
values are not reproduced here.)
Response : Defendant states that after reasonable inquiry of its records,
the information known or readily obtainable by Purnell is Insufficient to
enable it to either admit or deny this request as to the period from January
l9 2 until July 1986. Defenthnt’s agent during most of the questioned time
periods was Environmental Management, Inc. (EMI) which has been dissolved
through bankruptcy proceedings. Its president, Mr. Andy Winfrey, subsequently
worked with another consulting firm unrelated to the Defendant but has since
left its employ, and Defendant has been unable to discover his whereabouts by
phone. Evidence in the possession or control of EMI or Winfrey is necessary
to further respond to this admission. Defendant admits the reported data from
July 1986 on. Defendant has no record of discharge monitoring reports for
April and May, 1986, as noted in the question by “N.R.” Further admissions
requested by nuiyCer 12 are denied.
Request No. 13 : I)iring the following periods of time, Purnell Sausage
discharged pollutants containing the following calendar monthly average
concentrations and daily maximum concentrations of atTvnonia into the drainage
ditch or unnamed tributary flowing to Little Buliskin Creek from the
Simpsonvllle plant or failed to report any quantities where noted. ( .jmerical
values are not reproduced here.)
Response : Defendant states that after reasonable inquiry of its records,
the information known or readily obtainable by Purnell Is insufficient to
enable it to either admit or deny this request as to the period from January
1982 until July 1986. Defendant’s agent Jring most of the questioned time
—5—
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periods was Environmental Management, Inc. (EM!) which has been dissolved
through bankruptcy proceedings. Its president, Mr. Andy Winfrey, subsequently
worked with another consulting firm unrelated to the Defendant hut has since
left its employ, and Defendant has been unable to discover his whereabouts by
phone. Evidence In the possession or control of EM! or Winfrey is necessary
to further respond to this atinission. Defendant admits that portion of the
reported data from July 1986 on. Defendant has no record of discharge
monitoring reports for 1982 as noted In the question by “N.R.” Defendant has
no record of daily concentrations of armnonia until the October, 1983 D .
Defendant also has no record of DHRs for April and May, 1986, as noted in the
question by “N.R.” Further admissions requested by number 13 are denied.
Request No. 14 : During the following periods of time, Purnell discharged
pollutants containing the following calendar monthly average quantities of
dissolved oxygen into the drainage ditch or unnamed tributary to Little
ul1skin Creek from the Simpsonville plant or failed to report any quantities
where noted. (Pkjmerical values are not reproduced here.)
Response : Defendant states that after reasonable inquiry of its records,
the Information known or readily obtainable by Purnell is insufficient to
enable it to either admit or deny this request as to the period from January
1982 until July 1986. Defendant’s agent during most of the questioned time
periods was Environmental Management, Inc. (EM!) which has been dissolved
through bankruptcy proceedings. Its president, Mr. Andy Winfrey, subsequently
worked with another consulting firm unrelated to the Defendant but has since
left its employ, and Defendant has been unable to discover his whereabouts by
phone. Evidence in the possession or control of EM! or Winfrey is necessary
to further respond to this admission. Defendant admits that• portion of the
reported data from July 1986 on. Defendant has no record of discharge
-6-
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monitoring reports for April and May, 1986, as noted in the question by
“NR.” Further admissions requested by nui er 14 are denied.
Request No. 15 : Each of the Discharge Monitoring Reports attached hereto
as Exr ibit C was made at or near the time of the acts, events, or conditions
recorded therein, by, or from information transmitted by a person with
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Response : Defendant states that after reasonable inquiry of its records,
the information known or readily obtainable by Purnell is insufficient to
enable it to either admit or deny this request as to Discharge Monitoring
eports (DMRs) submitted before July 1986. See response to requests number
12, 13, 14, and 17 above. Defendant admits request number 18 as it relates to
OMRs submitted after July 1986. Defendant notes that It recently obtained
data from Microbac Laboratories which bears On this question and which will be
submitted to the Plaintiff separately under an Amended Response to Plaintiff’s
Request for Production of Documents.
Request No. 19 : With respect to each of the Discharge Monitoring Reports
attached hereto as Exhibit C, the figures recorded on the document as
representing the amount or concentration of pollutants discharged by Purnell
Sausage were, in fact, the amount or concentration of pollutants that actually
were discharged.
Response : Defendant states that after reasonable inquiry of its records,
the information known or readily obtainable by Purnell is insufficient to
enable it to either admit or deny this request as to Discharge Monitoring
Reports (OMRs) submitted before July 1986. See response to requests number
12, 13, 14, and 17 above. Defendant admits request nuiter 19 as it relates to
1 4Rs submitted after July 1986. Defendant notes that it recently obtained
data from Microbac Laboratories which bears on this question and which will be
submitted to the Plaintiff separately under an Amended Response to Plaintlf?’s
Request for Production of Docunents. Further admissions requested by number
19 are denied.
Request No. 20 : Exhibit 0 attached hereto is a genuine copy (excluding
the handwritten notations) of a suninary of effluent data for discharges from
the Slmpsonville plant for January through December 1982, prepared for Purnell
Sausage.
—8 —
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Response : Defendant states that after reasonable inquiry of its records,
the information known or readily obtainable by Purnell is insufficient to
enable it to either admit or deny this request. See response to requests
number 12, 13, 14, and 17 above. Defendant notes that it recently obtained
data from P’Iicrobac Laboratories which bears on this question and which will be
submitted to the Plaintiff separately under an Amended Response to Plaintiff’s
Request for Production of Documents.
Request No. 21 : Exhibit D was prepared by Purnell Sausage’s consultant
at tnat time, Environmental Management, Inc.
Response : Defendant admits that Exhibit D appears on paper bearing the
Environmental Management, Inc. logo and that Environmental Management, Inc.
was a consultant to Purnell at that time, however, after reasonable inquiry of
its records, the information known or readily obtainable by Purnell is
insufficient to enable it to either admit or deny this request. See response
to requests number 12, 13, 14, and 17 above.
Request No. 22 : The typed numerical values reported In Exhibit 0
attached hereto are true and correct. If defendant admits that only some of
the values reported in Exhibit 0 are true and correct, please state
specifically which values are so admitted and which are not.
Response : Defendant states that after reasonable inquiry of its records,
the information known or readily obtainable by Purnell is insufficient to
enable it to either admit or deny this request. See response to requests
number 12, 13, 14, and 17 above. Defendant notes that it recently obtained
data from Microbac Laboratories which bears on this question and which will be
submitted to the Plaintiff separately under an Amended Response to Plaintiff’s
Request for Production of Documents. Further admissions requested by nuTOer
22 are denied.
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Request No. 23 : PurneU, Sausage did not submit Discharge Monitoring
Reports for the Sin sonvi11e plant reporting effluent data for the months of
April and May, 1986.
Response : Defendant states that after reasonable inquiry of its records,
the information known or readily obtainable by Defendant is insufficient to
enable it to either admit or deny this request. However, Defendant admits
that no Rs for April or May 1986 have been located In either Defendant’s
files or EPA’s furnished documents. See response to requests number 12, 13,
14, and 17 above.
Request No. 24 : Purnell Sausage did not take sanples and report the
values for the pollutants listed in its permit, Exhibit A attached hereto, for
the period of June 1—14, 1986.
Response : Defendant states that after reasonable inquiry of its records,
the information known or readily obtainable by Defendant is insufficient to
enable It to either admit or deny this request. However, Defendant admits
that no DMRs for the period of June 1—14, 1986 have been located in either
Defendant’s files or EPA’s Piles. See response to requests number 12, 13, 14,
and 17 above. Defendant notes that it recently obtained data Prom Microbac
Laboratories which bears on this question and which will be submitted to the
Plaintiff separately under an Amended Response to Plaintiff’s Request for
production of Docuuents.
Request Mo. 25 : Purnell Sausage did not take san les and report the
values for the pollutants listed in its permit, Exhibit A attached hereto, for
the period of October 5, 1986 through November 1, 1986.
Response : Defendant admits that no OMRs for the period of October 5,
1986 through November 1, 1986 have been located in either Defendant’s or EPA’s
files. Defendant directs Plaintiff to a letter from Al Goodman, Engineer, to
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Curt Fehn dated October 30, 1986, reporting sampling data. Further a n1ssjons
requested by nund er 25 are denied.
Re .jest No. 26 : Each document attached hereto is a true and correct copy
of the original document.
Response : Defendant states that after reasonable inquiry of its records,
tne information known or readily obtainable by Purnell is insufficient to
9nable it to either admit or deny this request, since the originals are not
available For comparison to the copies attached to the request. However,
these documents appear to be accurate copies of various documents contained In
Defendant’s files.
Request No. 27 : All documents provided to the United States In response
to the United States’ First Request for Production of Documents are true and
accurate copies of authentic documents from Purnell Sausage’s files.
Response : Admitted as to being copies of documents from Purnell files or
obtained by counsel during this litigation. “Authentic” is not defined by
Plaintiff and is, therefore, denied. Further admissions requested by number
27 are denied.
R. VAN STOC1OJ4, JR.
) A. Q EEN8ERG
745 West Main St., Suite 200
Louisville, KY 40202
(502) 568-6838
Counsel for Defendwit•
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IJ ITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
UNITED STATES OF AMERICA, )
Plaintiff )
)
vs. ) Civil Action No. 87—24
)
F.8. PURNELL SAUSAGE COf FANY, INC., )
Defendant )
ANSWERS To ...AINTIFF’S SECOND SET
OF INTERROCATORIES
Comes the Defendant, F.8. Purnel]. Sausage Company, Inc., and for its
answers to the second set of interrogatorles propounded by the Plaintiff,
states as follows.
INTRODUCTORY STATEMENT
To the extent Plaintiff has attempted to extend the responsibilities of
this Defendant beyond the scope of discovery established by the applicable
Federal Rules of Civil Procedure, Defendant declines to accept such
responsibilities.
INTERROGATOR IES
Interrogatory No. 1 . Defendant alleges that EPA failed to state a claim
for hicri relief can be granted. State each and every fact relied upon in
support of this allegation, identify each and every person with information
and/or knowledge regarding this allegation, summarize the information or
knowledge possessed by such persons and state the tdentity, existence,
location and custodian of any documents which you believe support this
allegation.
Response : Defendant submits that it has not completed discovery and
triat, therefore, additional facts may be discovered which support its defense
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that EPA failed to state a claim for wtiich relief can be granted. The
depositions of Mr. Curt Fehn, Ms. Susan Rollins, and Mr. Dan Ahern, who are
current employees of the EPA, are set for March 22 and 23, 1988. The
deposition of former EPA permit writer Valerie Hudson is set for March 9,
1968.
The facts as stated in response to Interrogatory number 2 illustrate that
the Plaintiff failed to reissue Defendant s NPDES permit after its outfall had
oeen relocated, by agreement with the State of Kentucky, to a point
approximately one ile downstream and adjacent to the Simpsonville Publicly
Owned Treatment Works (P01W). The permit issued by the U.S. EPA for the
original outfall is, therefore, inapplicable and unenforceable.
The following .ndividuals have knowledge of this allegation:
1. Robert and Allen Purnell: knowledge concerning negotiations with the
EPA, State of Kentucky, Simpsonville P01W and Wilson Wyatt concerning
permitting and the relocation of the outfall line.
2. Al Goodman: expert consultant to Purnell, knowledge concerning
application of permitting criteria to Purnell facility, engineering aspects of
Purnell facility.
3. Andrew Winfrey: former consultant to Purnell, knowledge concerning
negotiations with the EPA, State of Kentucky, Simpsonville P01W and Wilson
Wyatt concerning permitting and the relocation of the outfall line.
4. Clyde Baldwin, State of Kentucky, knowledae concerning negotiations
with the EPA, State of Kentucky, Simpsonville P01W and Wilson Wyatt concerning
permitting and the relocation of the outfall line.
5. Ooug Aligeler, State of Kentucky, knowledge concerning negotiations
with the EPA, State of Kentucky, Simpsonvi]le P01W and Wilson Wyatt concerning
permitting and the relocation of the outfall line.
-2—
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In 1981, EPA renewed Purnell’s permit with these same stringent limitations,
even though EPA, through letters to Dan Ahern of EPA’s construction grants
branch, was on notice in 1980 of Purnell’s expanded wastewater discharge and
the planned relocation of its discharge line. At that time EPA was also given
higher limits for Purnell by the State of Kentucky.
The 1980 notice to P1 ern referenced an agreement between the State of
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referred to in the response to interrogatory number 1. are also responsive to
this interrogatory.
Interrogatory No. 3 . Defendant alleges that the assessment of penalties
in favor of the l .kljted States should be barred due to the misapplication of
applicable effluent limitations. State each and every fact relied upon in
support of this allegation, identify each and every person with Information
and/or knowledge regarding this allegation, summarize the information or
knowledge possessed by such persons and state the identity, existence,
location and custxiian of any documents ich you believe support this
allegation.
Response : Defendant submits that It has not completed discovery and
that, therefore, ditIonal Pacts may be discovered which support its claim
that the assessment of penalties in favor of the U.S. should be barred due to
the misapplication of applicable effluent limitations. The depositions of Mr.
Curt Fehn, Ms. Susan Rollins, and Mr. Can Ahern, who are current employees of
the EPA, are set for March 22 and 23, 1988. The deposition of former EPA
permit writer, Valerie Hudson, is set for March 9, 1988.
Incorporated herein is Purnell’s response to interrogatory number 2.
Defendant has been unable to fully reconstruct the process whereby its
effluent limits were set before the issuance of its first NPDES permit in
1974. However, application of categorical limits, which existed at the time
of permit renewal in 1981, illustrate that certain effluent limits reinstated
by the 1981 permit were unreasonable and/or issued by mistake. Defendant’s
production and water usage had both increased during the period of the first
permit. Even allowLng. for uncertainty of daily flow amounts and using several
different estimates of daily discharge totals, Defendant has been unable to
duplicate the derivation of permit limits for 80D5 contained in both the 1974
and 1981 NPDES permLts.
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Response : Defendant submits that it as not completed discovery and
that, therefore, additional facts may e discovered which support Its claim
that the assessment of penalties in favor of the U.S. should be barred due to
the misapplication of applicable effluent limitations. The depositions of Mr.
Curt Fehn, MS. Susan Rollins, and Mr. Dan Ahern, who are current employees of
t.ie EPA, are set for March 22 and 23, 1988. The deposition of former EPA
permit writer, Valerie Hudson, is set for March 9, 1988.
Incorporated herein Is Purnell’s response to interrogatory nunber 2.
EPA apparently miscalculated appropriate permit limitations for Purnell
in 1974. During the permit review process in 1981, the U.S. EPA requested
that the State of Kentucky furnish its water quality requirements for
Defendant’s discharge. The State responded with a figure of 25 mg/i for 8005
(which was the higher adjusted limit later given to Defendant by the State of
Xentucky in 1982 after the Defendant moved its discharge line). This
information appears to have been ignored by EPA because the 1981 NPOES permit
was reissued with the more stringent limits which were identical to those of
the 1974 DES permit.
In 1980 Purnell, the City of Simpsonvil].e, and the State of Kentucky
negotiated an agreement whereby Purnel1. would relocate its discharge line
approximately one mile downstream to a point adjacent to the proposed
Simpsonville POTW. The Simpsonville 201 Study had incorrectly calculated
Purnel]. ‘5 wastewater flow and the new POTW could not accon iiodate Purnel .l ‘S
discharge. Purnell agreed, therefore, to waive its right to hook on to the
POTW provided it received the same discharge limitations as the P01W. This
was accomplished through an Agreed Order with the State of Kentucky and a new
permit with higher discharge limitations was issued in 1982.
In March of 1983, the EPA granted the Simpsonvllle PON different and
higher discharge limitations than those it had Issued to Purnell in 1981.
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Botn facilities discharge similar flows into the same unnamed tributary and In
1982 Purne],1 relocated its outfall directly adjacent to the Si’npsonvtlle
P01W. EPA granted Simpsonville limitations similar to the ones that the State
issued to Purriell when it relocated its outfall line. Indeed, the State of
Kentucky was in the process of applying for authority to administer the
Federal program, which authority was granted In late 1983.
In 1985, EPA apparently reevaluated the applicable limitations for
Purnell but did not raise them significantly when compared to the Simpsonvi]le
POTW’s permit levels. Proper application of’ categorical and water quality
based standards would have resulted in Purnell’s limitations being raised to
3t least the Sinpsonville P01W levels. In addition, Purnell filed an updated
application for a new permit in December of 1985 citing production and flow
figures.
Defendant has recently learned, through the deposition of Doug Aligeler,
that the State of Kentucky has not processed Purnelj.’s new permit because of
this EPA instituted litigation.
EPA knew or should have known of the proper wasteload allocations and
permitting procedures for both the Purnell and Simpsonville facilities. EPA
knew or should have known of the relocation and subsequent repermitting of
Purnell’s outfall. Purnell was Ignorant of EPA’s lack of such knowledge and
was unaware of the impropriety of Its permit and EPA’s rejection of the State
permit upon iIth it had relied. Purnell expended funds in relocating its
discharge line and in atten ts to comply with EPA’s improperly fornNjlated
discharge limitation. EPA’s actions constitute more than mere error or minor
• reach of ct ty and constituted affirmative actions.
The estoppel sought herein is peculiar to the particular facts of this
case. Estoppel would not undermine the Federal Water Pollution Control Act
—9—
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(FWPCA); on the contrary, the FWPCA is enhanced where Courts recognize the
need for consistency and fairness in the application of proper standards to
the affecteci Industries. Estoppel based on the present facts does not deplete
the public ?jsc.
Individuals and documents identified in Defendant’s response to
interrogatorles number 1 and number 2 are responsive to this interrogatory.
Interrogatory NO. 5 . Identify each person answering or Participating in
answering these Interrogatories and identify which interrogatory each person
answered 3E participated in answering.
Response : Mr. Allen Purnell, Mr. Robert Purnefl, Sr., and Al Goodman
participated in answering these interrogatories on behalf of the Purnel]
Sausage Company, Inc.
W. Main Street, Suite 200
Louisville, KY 40202
(502) 568—6838
Counsel for Defendant
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ifi. Unpermitted Discharges
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111.-A. Complaints
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UNITED STATES DISTRICT COURT.
FOR THE MIDDLE DISTRICT OF FLORIDA
OCALA DIVIS IOu
U IITED STATES OF AMERICA,
Plaintiff,
v. ) Civil Action
) ‘‘ - L — ,( • .J
CITY OF WILDWOOD, FLORIDA )
and
THE STATE OF FLORIDA,
Defendants.
COMPLAINT
The United States of America, through its undersigned
attorneys, and at the request and on behalf of the Administrator
of the United States Environmental Protection Agency (“EPA”),
alleges that:
1. This is a civil action brought pursuant to Subsections
309(b) and (d) of the Clean Water Act (“the Act”), 33 U.S.C.
§ 1319(b) and (d), for injunctive relief and assessment of civil
penalties against the City of Wildwood, Florida, for its
discharges of pollutants in violation of Sections 301 and 402 of
the Act, 33 U.S.C. § 1311 and 1342, and for violations of the
conditions and interim limitations of Administrative Orders 85-
100, issued by EPA on January 30, 1985, and 85-311, issued on
.1 —
September 20, 1985, pursuant to Subsection 309(a) of the Act, 33
U.S.C § 1319 (a) . This is also an action for appropriate relief
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2
against the State of Florida under Subsection 309(e) of the Act
33 U.S.C. § 1319(e).
JURISDICTIQt4 AND VENUE
2. This Court has Jurisdiction over the subject nat er c
thi.s action under 28 U.S.C. § 1331, 1345 and 1355, and
Subsection 309(b) of the Act, 33 u.s.c. § 1319(b). The State o
Florida is aware of the United States’ coninencetnent of this
action.
3. Venue is proper in the Middle District of Florida
pursuant to 28 U.S.C. § 1395(a), and Subsection 309(b) of the
Act, 33 U.S.C. § 1319(b), because it is the judicial district in
,which the City of Wildwood is located and in which the alleged
violations occurred.
PARTI ES
4. Plaintiff is the United States of America, acting at
the request of and on behalf of the Administrator of EPA.
5. Defendant City of Wildwood (“the City”) is a political
subdivision of the State of Florida, duly chartered and formed
under the laws of the State of Florida, and is a “municipality”
and a “person” within the meaning of Subsection 502(4) and (5) of
the Act, 33 U.S.C. § 1362(4) and (5).
6. The State of Florida is joined as a defendant in this
action pursuant to Subsection 309(e) of the Act, 33 U.S.C.
§ 1319(e), and under the terms of that provision is liable for
payment of any judgment, or any expenses incurred as a result of
complying with any judgment, entered against the City to the
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extent that the laws of Florida prevent the City from raising
revenue needed to comply with the judgment.
GENERAL ALLEGATIONS
7. The City owns and operates a publicly owned treatrne
works (“POTW”) Located in Wildwood, Sumter County, Florida.
POTW collects and treats wastewater from residential, conutlerc:aL
and industrial sources and then discharges those wastewaters
Lake Panasoffkee via Lake Panasoffkee Swamp.
8. The City “discharges pollutants” within the meaning of
Subsections 502(6) and (12) of the Act, 33 U.S.C. § 1362(6) and
(12), from its POTW through a “point source” within the meaning
of Subsection 502(14) of the Act, 33 U.S.C. § 1362(14), into Lake
Panasoffkee, which is a “navigable water” as that term is defined
in Subsection 502(7) of the Act, 33 U.S.C. § 1362(7), and 40
C.F.R. 122.2.
9. Subsection 301(a) of the Act, 33 U.S.C § 1311(a),
prohibits the discharge of pollutants by any persons except in
compliance with that section and, inter alia , Sections 307 and
402 of the Act, 33 U.S.C. § 1317 and 1342.
10. Under Section 402 of the Act, 33 U.S.C. § 1342, the
Administrator may issue a National Pollutant Discharge
Elimination System (“NPDES”) permit which authorizes the
discharge of pollutants directly into navigable waters of the
United States, but only upon compliance with the applicable
requirements of Section 301 of the Act, 33 U.S.C. § 1311, and
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Such other conditions as the Administrator determines are
necessary to carry out the provisions of the Act.
11. EPA denied the City’s application for a NPDES per .
to replace expired permit No. FL0026320 on August 23, 1984.
12. Pursuant to Subsection 309(a) of the Act, 33 U.s.c.
§ 1319(a), EPA issued Administrative Order 85-100 to the City cn
January 30, 1985.
13. Administrative Order 85-100 authorized the City to
discharge pollutants from its POTW into Lake Panasoffkee, subject
to the limitations and conditions of expired NPDES Permit No.
FL0026820, and to submit a Municipal Compliance Plan by
June 30, 1985.
/
14. The City failed to submit a Municipal Compliance Plan
by June 30, 1985, as required by Administrative Order 85-100.
15. On September 20, 1985, EPA issued to the City
Administrative Order 85-311.
16. Administrative Order 85-311 authorized the City to
discharge into Lake Panasoffkee, subject to the limitations and
conditions of expired NPDES Permit No. FL0028620, until
June 30, 1988, after which time the City was to cease discharge
to surface waters.
17. The City failed to cease discharge to surface waters
by June 30, 1988, as required by Administrative Order No. 85-311.
18. Subsections 309(a) (3) and (b) of the Act, 33 U.S.C.
§ 1319(a) (3) and (b), provide, in part, for the commencement of
an action for appropriate relief, including permanent or
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temporary injunctions, against any person who violates, inter
alia , Section 301 of the Act, 33 U.S.C. § 1311, including any
permit condition or limitation implementing such sections.
19. Subsection 309(d) of the Act, 33 U.S.C. § 1319(d),
provides, in part, that any person who violates, irter ali3 ,
Section 301 of the Act, 33 u.s.c. § 1311, including any permit
condition or limitation implementing such sections, or violates
any order issued by the Administrator under Subsection 309(a) of
the Act, 33 U.S.C. § 1319(a), shall be subject to a civil penalty
not to exceed $10,000 per day for such violation prior to
February 4, 1987, and $25,000 per day for each violation
thereafter.
FIRST CLAIM FOR RELIEF
20. Paragraphs i through 19 are realleged and
incorporated by reference.
21. Since August 23, 1984, the City has repeatedly
discharged, and continues to discharge, pollutants from point
sources at its POTW into navigable waters without an effective
NPDES permit.
22. Each of the City’s discharges of pollutants into Lake
Panasoffkee constitutes a separate violation of Section 301 of
the Act, 33 U.S.C. § 1311 and of EPA’s Administrative Orders
issued pursuant to Subsection 309(a) of the Act, 33 U.S.C.
§ 1319(a).
23. Pursuant to Subsections 309(b) and (d) of the Act, 33
U.S.C. § 1319(b) and (d), the City is liable for injunctive
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relief and civil penalties not to exceed $10,000 per day of
violation before February 4, 1987, and $25,000 per day of
violation on or after February 4, 1987, for each of its
violations of Sections 301 and 309(a) of the Act, 33 U.S.C.
§ 1311 and 1319(a)
24. Unless enjoined by this Court, the City will continue
to violate Sections 301 and 309(a) of the Act, 33 U.S.C. § 111.1.,
and 1319(a).
SECO SXD CLAIM FOR RELIEF
25. Paragraphs 1 through 24 are realleged and
incorporated by reference.
26. Pursuant to Subsection 309(e) of the Act, 33 U.S.C.
§ 1319(e), the State of Florida is liable for payment of any
judgment, or any expenses incurred as a result of complying with
any judgment, entered against the City to the extent that its
laws prevent the City from raising revenues needed to comply with
such judgment.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, United States of America, prays that
this Court:
27. Permanently enjoin the City of Wildwood from
discharging pollutants except as expressly authorized by the Act
and the City’s NPDES permit;
28. Order the City of Wildwood to comply with all terms
and conditions of the Act;
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29. Assess against the City of Wildwood, pursuant to
Subsection 309(d) of the Act, 33 U.S.C. § 1319(d), a civil
penalty not to exceed $10,000 for each day of each violation o
the Act prior to February 4, 1987, and $25,000 for each day of
each violation thereafter, up to the date of Judg ment herein; ar d
30. Grant such other and further relief as the Court av
deem Just and proper.
Respectfully submitted,
DONALD A. ARR
Acting Assistant Attorney General
Land and Natural Resources Division
DIANNE M. SHAWLEY, Attorney ,f
Environmental Enforcement Sect’jon
Land and Natural Resources Division
United States Department of Justice
P.O. Box 7611
Benjamin Franklin Station
Washington, D.C. 20044
ROBERT W. GENZMAN
United States Attorney
Middle District of Florida
QA
Assistant United States Attorney
Middle District of Florida
409 Post Office Building
311 West Monroe Street
Jacksonville, Florida 32201
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Of Counsel:
ALAN E. DION
Assistant Regional Counsel
U.S. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FT. QRID& 31 3: I
JACKSONVILLE DIVISION
UNITED STATES OF AMERICA, )
Plaintiff,
v. ) CIVIL ACTION NO. i ( <( 3tL.
CITY OF NEPTUNE BEACH, FLORIDA
and
THE STATE OF FLORIDA,
Defendants.
COMPLAINT
The United States of America, through its undersigned
counsel, and at the request and cn behalf of the Administrator of
the United States Enu’iromnentai Protection Agency (“EPA”),
alleges that:
1. This is a civil action brought pursuant to
Subsections 309(b) and (d) of the Clean Water Act (“the Act), 33
U.S.C. 5 1319(b) and (d), for injunctive relief and assessment of
civil penalties against the City of Neptune Beach (“the City”)
for its discharges of pollutants in violation of Sections 301 and
402 of the Act, 33 U.S.C. SS 131]. and 1342, and for violations of
the Conditions and interim limitations of Administrative Order
(A.O.’) No. 83-139 and Amendment to A.O. No. 83-139 pursuant to
Secti rn 309(a) of the Act, 33 U.S .c. 5 1319(a). This is also an
action for appropriate relief against the State of Florida under
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Section 309(e) of the Act, 33 U.S.C. S 1319(e).
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject matter
of this action under 28 U.S.C. §5 1331, 1345 and 1355, and
Subsection 309(b) of the Act, 33 U.S.C. § 1319(b). Notice of
commencement of this action has been given to the State of
Florida and is further given by- naming it as a defendant herein
and serving this complaint.
3. Venue is proper in the Middle District of Florida
pursuant to 28 U.S.C. SS 1319(b) and (C) and 1395(a), and
Subsection 309(b) of the Act, 33 U.S.C. § 1319(b), because it is
the judicial district in which the City is located and in whith
the alleged violations occurred.
4. Plaintiff is the United States of America, acting at
the request and on behalf of the Administrator of EPA.
5. Defendant, City of Neptune Beach, is a political
subdivision of the State of Florida, formed as a special tax
district by the Florida legislature in 1967, and is a
“municipa1ity• within the meaning of Subsection 502(4) of the
Act, 33 U.s.c. § 1362(4).
6. The State of Florida is joined as a defendant in
this action pursuant to subsection 309(e) of the Act, 33 U.s.c.
5 1319(e), and under the terms of that provision is liable for
payment of any judgment, or any expenses incurred as a result of
comp1 ing with any judgment, entered against the City to the
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extent that the laws of Florida prevent the City from raising
revenue needed to comply with the judgment.
GENERAL ALLEGATIONS
7. The City owns and operates a publicly owned
treatment works (POTW) located at Strickland Road and Forrest
Avenue in the City of Neptune Beach. That POTW collects arid
treats wastewater from co1T ercja1 and industrial sources and then
discharges those wastewaters into the St. Johns River (previously
it discharged into the Intracoasta). Waterway).
8. The City ‘discharges pollutants” within the meaning
of Subsections 502(6) and (12) of the Act, 33 U.S.C. § 1362(6)
and (12), from its POTW through a “point source’ within the
meaning of Subsection 502(14) of the Act, 33 U.S.C. S 1362(14),
into the St. Johns River, which is a “navigable water” within the
meaning of Subsection 502(7) of the Act, 33 U.S.C. § 1362(7), and
40 C.F.R. 122.2.
9. Subsection 302(a) of the Act, 33 U.S.C. S l 3 11(a),
prohibits the discharge of pollutants by any persons except in
compliance with that section and, inter alia , Sections 307 and
402 of the Act, 33 U.S.C. SS 1317 and 1342.
10. Under Section 402 of the Act, 33 U.S.C. § 1342, the
Administrator may issue an NPDES permit which authorizes the
discharge of pollutants directly into navigable waters of the
United States, but only upon compliance with the applicable
requirements of Section 301 of the Act, 33 U.S.C. § 1311, and
such other conditions as the Administrator determines are
necessary to carry out the provisions of the Act.
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11. EPA issued NPDES Permit No. PL0020427 to the City
on July 1, 1977. That permit expired on June 30, 1982.
12. Pursuant to Subsection 309(a) of the Act, 33 U.S.C.,
S l319(a , EPA issued A.O. 83—139 to the City effective July 8,
1983.
13. A.O. 83-139 cited the City for not meeting final
effluent limitations by July 1, 1977, established a compliance
schedule with interim effluent limitations, and required
compliance with final effluent limitations by July 1, 1988.
14. Effective October 1, 1984, EPA issued an NPDES
permit to the City to allow discharge to the St. Johns River.
This permit also places limitations on the quantity and
concentration of BOD, TSS, and fecal. coliform discharged. This
permit expires on September 30, 1989.
1.5. On March 27, 1985, EPA issued to the City an
Amendment to A.O. 83-139, which cited the City for discharging
without a permit. The Amendment established a revised schedule
of compliance requiring relocation of the discharge to the St.
Johns River and compliance with final effluent limitations by
December 31, 1986.
16. Prior to December 5, 1988, the City continued to
discharge to the Intracoastal Waterway in violation of Section
402 of the Act.
17. The City failed to meet all the requirements of the
Amendment by the final compliance deadline of Deceither 31, 1986.
It has relocated the discharge but continues to discharge
pollutants into the St. Johns River in excess of the effluent
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limits contained in NPDES permit No. FL 0020427.
18. Subsections 309(a)(3) and (b) of the Act, 33 U.s.c.
S l3i9 a 3 and (b), provide, in part, for the commencement of
an action for appropriate relief, including permanent or
temporary injunctions, against any person who violates, ji er
alia , Section 301 of the Act, 33 U.S.C. S 1311, including any
permit condition or limitation in p1exnenting such sections.
19. Subsection 309(d) of the Act, 33 U.S.C. 5 1319(d),
provides, in part, that any person who violates, inter alia ,
Section 301 of the Act, 33 U.S.C. § 1311, including any permit
conditions or limitation implementing such sections, or violates
any order issued by the Administrator under Subsection 309(a) of
the Act, 33 U.S.C. S 1319, shall be subject to a civil penalty
not to exceed sio,ooo per day for such violation prior to
February 4, 1987, and $25,000 per day for each violation
thereafter.
FIRST CLAIM FOR RELIEF
20. Paragraphs 1 through 19 are realleged and
incorporated herein by reference as if fully set forth below.
21. From July 1, 1982, through December 4, 1988, the
City discharged pollutants from its POTW to the Intracoastaj.
Waterway without an effective NPDES permit for discharge to that
receiving water body.
22. Pursuant to Subsections 309(b) and (d) of the Act,
33 U.S’.C. S 1319(b) and (d), the City is liable for injunctive
relief and civil penalties not to exceed $10,000 per day of
violation before February 4, 1987, and not to exceed $25,000 per
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day of violation on or after February 4, 1987, for each of its
violations of Sections 301 and 309(a) of the Act, 33 U.s.
§5 1311 and 1319(a). Unless enjoined by this Court, the City’s
violations will Continue.
COND CLAIM FOR RELIEF
23. Paragraphs i through 22 are realleged and
incorporated herein by reference as if fully set forth below.
24. Pursuant to Subsection 309(e) of the Act, 33
U .S.C. § 1 319(e), the State of Florida is liable for payment of
any judgment, or any expenses incurred as a result of complying
with any judgment, entered against the City to the extent that
its laws prevent the City from raising revenues needed to Comply
with such judgment.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, United States of America, prays
that the Court:
1. Permanently enjoin the City from discharging
pollutants except as expressly authorized by the Act and the
City’s NPDES permit;
2. Order the City to comply with all terms and
conditions of the Act;
3. Pursuant to Subsection 309(d) of the Act, 33
U.S.C. § 1319(d), assess the City civil penalties not to exceed
$10,000 per day of violation prior to February 4, 1987, and
$25;000 per day of violation since February 4, 1987 up to the
date of judgment herein, of Section 301 of the Act, 33 U.S.c.
§ 1311, and of its Order; and
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j i)
\A1
c kAV\
Donald
A. Carr
Acting
Assistant Attorney General
Land &
United
Natural Resources Djvj jo
States Department
of Justice
Robert
W. Genzman
United
Middle
States Attorney
District of Florida
S1o,jo j
Assistant United States Attorney
Middle District of Florida
Jacksonville Division
V ]AdliP&U -
Dianne M. Shawley
Trial Attorney
Environmental Enforcement Section
Land & Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Benjamin Franklin Station
Washington, D.C. 20044
(202) 633—3906
Jacqueline F. Colson
Assistant Regional Counsel
U.S. Environmental Protection Agency
345 Court].and Street, N.E.
Atlanta, Georgia 30365
4. Grant the United States such other relief as the
Respectfully submitted,
Court deems appropriate.
DATE
DATE
o /92 ?
OF COUNSEL:
BY:
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FOIM OID.113
MAI S3
IN THE UNITED STATES DISTRICT COURT P7Ifi
FOR THE NORTHERN DISTRICT OF CALIFOr*
UNITED STATES OF AMERICA; STATE OF
CALIFORNIA EX REL. DEPARTMENT OF
FISH AND GAME, STATE LANDS COMMISSION.,
DEPARTMENT OF ‘ARKS AND RECREATION,
REGIONAL WATER QUALITY CONTROL BOARD
FOR THE SAN FR\NCISCO BAY REGION, AND.
SAN FRANCISCO BAY CONSERVA . N AN
DEVELOPMENT COMMISSION; PE E OF
STATE OF CALIFORNIA IN AND R TH
COUNTIES OF CONTRA COSTA AND SOLANO;
CONTRA COSTA COUNTY; SOLANO COUNTY:
CITY OF BENICIA; CITY OF MARTINEZ:
AND EAST BAY REGIONAL PARK DISTRICT:
Plaintiffs,
V.
SHELL OIL COMPANY,
Defendant.
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4220
CIVIL No. _- :A t
COMPLAINT
(Other Action)
(Jury Demanded)
NATURE OF THE ACTION
1. This is a civil action arising as a result of an
unlawful discharge of oil from Defendant Shell Oil Company’s on-
shore oil refinery in Martinez, California, The Plaintiffs, the
United States, the State of California, Contra Costa and Solano
Counties, the Cities of Benicia and Martinez, and the East Bay
Regional Park District seek damages, penalties and costs arising
in connection with this unlawful discharge.
JURISDICTION AND VENUE
2. This Court has jurisdiction of this action
pursuant to 28 U.S.C. H 1331, 1345, and sections 309 and 311 of
the Clean Water Act, 33 U.S.C. H 1319 and 1321. This Court also
has jurisdiction over the subject matter of the pendent State law
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1 claims set forth below. Facts supporting such federal
2 jurisdiction are alleged below.
3. Venue is appropriate in the Northern District of
California pursuant to 28 U.S.C. § 1391(b).
. ‘ARTIES AND CLAIMS
6 4. Plaintifi United States files this action pursuant
to sections 309 and 311 of the Clean Water Act (“the Act”), 33
8 § 1319 and 1321. On behalf of the U.S. Department of
II Commerce, the U.S. Department of the Interior, and the U.S.
10 Department of the Navy, the United States seeks recovery for
damages caused by the Oil Spill to natural resources under the
12 trusteeship of the aforementioned departments of the United
13 I States. On behalf of the U.S Environmental Protection Agency,
14 the United States seeks assessment of penalties against Shell for
15 the unlawful Oil Spill. The United States also seeks recovery of
16 costs incurred in connection with the Oil Spill.
17 5. Plaintiff State of California ex rel. Department
18 1 of Fish and Game, State Lands Commission, Regional Water Quality
19 1 Control Board for the ‘San Francisco Bay Region, Department of
20 Parks and Recreation and San Francisco Bay Conservation and
21 Development Commission (“State”) files this action pursuant to
22 the Clean Water Act, 33 U.S.C. § 1251 sea. ; California Fish
23 ‘and Game Code sections 2014, 5655, 12015 and 12016; California
24 Harbors and Navigation Code section 151; California Water Code
26 sections 13304, 13350, and 13385; California Public Resources
26 Code section 29610; Government Code section 66641.5; and
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tNOSD.IS3
MA*S3
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trespass, negligence, nuisance, and a common law action for
2
natural resource damages. In filing this action, the State seeks
3.
recovery for damages caused by the Oil Spill to natural resources
owned by, managed by, controlled by, belonging to, appertaining
5
to, and/or under the trusteeship of the State; for civil
6 I
penalties and damages; and for c3sts incurred in connection with
7
the Oil Spill.
8
• 6. The District Attorney of Contra Costa County and
9;
the District Attorney of Solano County, acting to protect the
10
public from health and safety hazards as well as unlawful
11
business practices, bring this action in the public interest in
12
the name of the People of the State of California and at the
request of the California Department of Health Services pursuant
14 to the Hazardous Waste Control Act, as contained in the Health
15 and Safety Code sections 25100 Beg. , and pursuant to the
16 statutory law of the State of California prohibiting unfair and
17
unlawful business practices, as contained in Business and
18 Professions Code section 17200 g. Plaintiff the People of
19 the State of California in and for Contra Costa and Solano
20 Counties and on behalf of the California Department of Health
21 Services seeks recovery of penalties.
22 7. The Counties of Contra Costa and Solano seek
23 recovery of damages and costs caused by the Oil Spill.
24 8. Plaintiffs Cities of Benicia and Martinez allege
25 civil claims for relief for trespass, negligence, and nuisance,
26 I ! and seek recovery of damages and costs.
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9. Plaintiff East Bay Regional Park District alleges
2
civil claims for relief for natural resource damages, trespass,
3P
and nuisance, and seeks recovery of damages and costs.
4.
10. Defendant Shell Oil Company (“Shell’) is a
5
corporation incorporated under the laws cf Delaware. Shell does
business in the State of Cal .fornia and, as part of that
business, owns and operates an oil refinery in Martinez,
8 California.
11. Whenever reference is made in this Complaint to
10 any act of Shell, such allegation shall be deemed to mean that
the directors, officers, agents, employees or representatives of
12 Shell did or authorized such act while actively engaged in the
13 management, operation or conduct of the affairs of Shell and
14 while acting in the course and scope of their employment.
15 GENERAL PROVISIONS
16 12. On or about April 22 through 23, 1988, Shell
17 discharged, without a permit, at least 432,264 gallons of crude
18 oil from its on—shore oil refinery complex (“Complex”) in
19 Martinez, California on to lands and waters, including wetlands,
20 surrounding the Complex (the Oil Spill”).
21 13. The Oil Spill inundated Shell Marsh and Peyton
22 Slough and entered Suisun Bay, Carquinez Strait and other waters
23 of the San Francisco Bay/Delta Estuary (“Bay/Delta Estuary”) and
24 the lands adjoining the estuary.
25 14. The Oil Spill coated miles of shoreline along
26 Carquinez Strait and Suisun Bay and caused streams of oil and
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IMOSD.lI3
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2 sheens o spread several miles in length across these waters. The
oil also entered sloughs along the Bay/Delta Estuary.
15. The Oil Spill caused, and continues to cause,
injury to natural resources of the Bay/Delta Estuary. Natural
resources damaged by the spill are under the join. and/or sole
6.
trusteeship of the United States and the State of California.
7
16. The Oil Spill occurred when the flExible drain
8
hose of the internal roof drain system of tank 1256, a holding
9
tank for oil in the Complex, separated from a flange which
10
connects it to the roof. The open-ended hose allowed oil to
11
enter the roof drain system that was designed to drain water from
12
the roof of the tank. Once in the roof drain system, the oil
13
flowed through a levee drain valve, which had been left open by
14
Shell, to lands and waters surrounding the Complex.
15:
I 17. The internal roof drain system for tank 1256
16 failed as a result of Shell’s failure to ensure proper
17 installation of the internal drain hose. Notwithstanding the
18 failure of the internal roof drain system, had Shell followed the
19 prcedures required by its federally required Spill Prevention
Control and Countermeasures (“SPCC”) Plan and sound management
21 practices, the oil entering the roof drain system would have been
22j1
contained by a berm surrounding tank 1256.
23 18. By leaving the levee drain valve of tank 1256 open
24 in violation of its SPCC Plan, and due to the failure of the
25 hose, Shell creqted a direct conduit for the oil to enter Peyton
26 i Slough, Shell Marsh, and other waters of the Bay/Delta Estuary.
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2 19. plaintiffs have incurred costs in connection with
the clean—up and abatement of the Oil Spill, mitigation of the
damage caused by the Oil Spill, and assessment of the effects of
the Oil Spill.
5
20. Plaintiffs will continue to incur costs, including
6
costs associated with assessing the damages to the natural
7
resources and costs associated with prosecuting this action.
8
9
FIRST CLAIM FOR RELIEF
10
(UNITED STATES AND THE STATE OF CALIFORNIA:
11 CLEAN WATER ACT, 33 U.S.C. § 1321)
12 21. The United States and the State of California
13 reallege the allegations contained in paragraphs 13 through 20
14 above.
15 22. The Complex is an onshore facility within the
16 meaning of Section 311(a) (10) of the Act, 33 U.S.C.
17 § 1321(a) (10).
18 23. Shell is an owner and operator of the Complex
19 ‘within the meaning of Section 311(a) (6) of the Act, 33 U.S.C.
20 1321(a) (6).
21 24. The Oil Spill was an unpermitted discharge of oil
n i into the waters of the United States, adjoining shorelines,
23 I and/or the waters of the contiguous zone in harmful quantities
24 within the meaning of section 311(b) (4) of the Act, 33 U.S.C.
25 S 1321(b) (4), and the federal regulation implementing that
26 provision, 40 C.F.R. 5 110.3.
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IMOSO.IS3
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2 25. The Oil Spill from the Complex was in violation of
section 311(b) (3) of the Act, 33 U.S.C. § 1321(b) (3), which
prohibits such discharges.
26. Pursuant to section 311(f) (2) of the Act, 33
5 ’
U.S.C. § 1321(f)(2), Shell is liable to the United States and
6
California for actual costs incurred relating to the removal of
7
such oil under sections 311(c) and 311(f) (4) of the Act, 33
8
U.S.C. § 1321(c) and 1321(f)(4). Such actual costs include, but
9,
are not li nited to, any response costs, and any costs or expenses
10
for the restoration or replacement of natural resources damaged
11
or destroyed as a result of the Oil Spill, or the acquisition of
12
resources equivalent to those damaged by the Oil Spill, 33 U.S.C.
13’
§ 1321(f) (4) and (5).
14
SECOND CLAIM FOR RELIEF
15 !, (UNITED STATES:
16 CLEAN WATER ACT, 33 U.S.C. § 1319)
17 27. The United States realleges paragraphs 13 through
18 20 above.
19 ‘ 28. Section 301(a) of the Act, 33 U.S.C. §1311(a),
20 prohibits any person from discharging pollutants into waters of
21 the United States unless the discharge is authorized by and in
22 compliance with, inter qua , the terms and conditions of a
23 National Pollutant Discharge Elimination System (“NPDES”) permit
24 issued pursuant to Section 402 of the Act, 33 U.S.C. § 1342.
25 I 29. Pursuant to section 402(b) of the Act, 33 U.S.C.
26 1342(b), the Administrator of the U.S. Environmental Protection
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Agency delegated the authority to issue NPDES permits to the
2
State of California.
3
30. By virtue of a proper delegation of authority to
4
the State of California, the California Regional Water Quality
5
Control Board for the San Francisco Bay Region has, and had at
6
all relevant times, the authcrity to issue NPDES permits.
31. On February 25, 1985, the California Regional
8 Water Quality Control Board for the San Francisco Bay Region
issued NPDES permit No. CA 005789, as amended, to Shell for
10 discharges from the Complex. At all relevant times this permit
was in effect and authorized Shell to discharge pollutants from
12 specified discharge points subject to certain effluent
13 limitations, monitoring and reporting requirements, and other
14 conditions.
15 32. Shell is a person within the meaning of section
16 502(5) of the Act, 33 U.S.C. § 1362(5).
17 33. During the Oil Spill Shell discharged pollutants,
18 within the meaning of section 502(6) and (12) of the Act, 33
19 U.S.C. § 1362(6) and (12), from the Complex into Peyton Slough
20 and the waters of Suisun Bay and other waters of the Bay/Delta
21 Estuary.
22 I 34. Peyton Slough, Suisun Bay, and the Bay/Delta
23 Estuary and surrounding wetlands are navigable waters of the
24 United States within the meaning of section 502(7) of the Act, 33
25 U.s.c. § 1362(7).
26
—8—
tNOSD.IS3
MAt $3
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1
2 35. During the Oil Spill pollutants were discharged
from Shell’s Complex through a point source within the meaning of
section 502(14) of the Act, 33 U.S.C. § 1362(14).
36. During the Oil Spill, Shell failed to comply with
6 the terms and conditio. s of this NPDES permit, in violation of
section 301(a) of the Act, 33 U.S.C. § 1311(a), in that it
8 discharged oil through NPDES permit discharge point 003 in excess
of the limitations contained in its NPDES permit for that
9
discharge point.
10
37. Pursuant to section 309(d) of the Act, 33 U.s.c.
11
§ 1319(d), Shell is liable to the United States for civil
12
penalties of up to $25,000.00 per day for each violation of
13
section 301(a) of the Act, 33 U.S.C. § 1311(a).
14
THIRD CLAIM FOR RELIEF
15
(PEOPLE OF THE STATE OF CALIFORNIA:
16 HEALTH AND SAFETY CODE 25189)
17 38. The People of the State of California, by and
18 through the District Attorney of Contra Costa County and the
19 : District Attorney of Solano County, reallege paragraphs 13
20. through 20 above. By virtue of the Oil Spill, Shell did
21 : negligently dispose of a hazardous waste, to wit: oil, at a place
22 which is not authorized according to the provisions of Chapter
23 6.5 of the Health and Safety Code in violation of Health and
24 Safety Code section 25189(d).
—9—
FOIM OSO.113
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ti
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1J _________________
FOURTH CLAIM FOR RELIEF
2
I (PEOPLE OF THE STATE OF CALIFORNIA:
3 BUSINESS AND PROFESSIONAL CODE 17200)
4 I 39. The People of the State of California, by and
5 through the District Attorney of Contra Costa County and the
6 District Attorney of Solano Cou ty, reallege paragraphs 13
7 through 20 above. It is a11ege that each of the violations set
8 forth in paragraph 38 constitutes a separate and distinct
9 unlawful business practice in violation of Business and
10 Professions Code section 17200.
11 FIFTH CLAIM FOR RELIEF
12 (STATE OF CALIFORNIA:
FISH AND GAME CODE 12016)
13 40. The State of California realleges the allegations
14 contained in paragraphs 13 through 20 above.
15 41. The oil which Shell discharged from its Complex
16 during the Oil Spill is a substance or material that is
17 deleterious to fish, plant, bird, or animal life or their habitat
18 within the meaning of section 12016 of the California Fish and
19 Game Code.
20 42. The oil which Shell discharged from its Complex
21 during the Oil Spill was discharged or deposited into the waters
22 of the State or discharged where it threatened to enter waters of
23 the State within the meaning of section 12016 of the California
24 Fish and Game Code.
25 43. Shell’s discharge of oil killed or injured fish,
26 plants, birds and animals and their habitats and other resources
—10—
Q MOID-IS3
MALS3
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1
of the State, making Shell liable to the State for all actual
2
damages to the State.
44. Pursuant to section 12016 of the California Fish
4
and Game Code, Shell is liable to the State for all actual
5
damages to the State’s natural resourceu and for costs incurred
6
by the State to clean up the,oil, or to abate the effects of the
7
discharge of oil, or both.
8
SIXTH CLAIM FOR RELIEF
9
(STATE OF CALIFORNIA:
10 FISH AND GAME CODE 2014)
11 45. The State of California real]eges the allegations
12 contained in paragraphs 13 through 20 above.
13 46. The oil which Shell discharged from its Complex
14 during the Oil Spill caused and will continue to cause the taking
15 and destruction of birds, mammals, fish, reptiles, and amphibia
16 protected by the laws of the State of California, within the
17 meaning of section 2014 of the California Fish and Game Code.
18 47. Shell’s discharge of oil was a result of its
19 unlawfulness and negligence.
20 1! 48. Shell’s discharge of oil was unlawful in that:
21 a. The oil was a pollutant discharged in a manner
not permitted by waste discharge requirements, a
23 violation of section 13385 of the California Water
24 F Code;
25 I b. In the alternative to the allegations
26 contained in subparagraph (a) above, the oil was a
waste intentionally and negligently discharged
—11—
cOaU OSD.113
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I
into the waters of the State and created a
2
condition of pollution or nuisance, in violation
3:
of waste discharge requirements, a violation of
4’
subsection 13350(a) (2) of the California Water
Code;
6
c. In the al ernative to the a1lt gations
I contained in subparagraph (a) abo ie, the oil was
8 deposited in waters of the State in a manner not
permitted by waste discharge requirements or other
10 . . .
provisions of Division Seven of the California
11 Water Code, a violation of subsection 13350(a) (3)
12 of the California Water Code; and
13 d. In the alternative to the allegations
14 contained in subparagraph (a) above, the oil was a
15 hazardous substance and was discharged in a manner
16 not permitted by waste discharge requirements or
17 other provisions of Division Seven of the
18 California Water Code, where it created a
19 condition of pollution or nuisance, a violation of
20 subsection 13350(b) of the California Water Code.
21 49. Shell’s unlawful and negligent discharge of oil
n proximately caused, and will continue to cause, the taking or
23 destr ctjon of birds, mammals, fish, reptiles, or amphibia
24 protected by the laws of the State of California.
25 50. Pursuant to section 2014 of the California Fish
26 and Game Code, Shell is liable to the State for all the detriment
—12—
IMOS .IU
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1
2 proximately caused by the taking or destruction of birds,
3 mammals, fish, reptiles, or amphibia protected by the laws of the
State.
SEVENTH CLAIM FOR RELIEF
(STATE OF CALIFORNIA:
6 COMMON LAW NATURAL RESOURCE DAMAGES)
7 51. The State of California realleges the alleiations
8 contained in paragraphs 13 through 20 above.
9 52. According to the common law of the State, the
10 State of California is the owner of, and/or trustee for, all
11 natural resources of the State, including but not limited to
12 certain lands, waters of the State, and plants, animals, fish,
13 and wildlife and their habitats within the State. In addition,
14 the State has a duty to protect the environment of the State,
15 including but not limited to all the air, land, and water within
16 the State.
17 53. Shell’s discharge of oil during the Oil Spill
18 caused, and continues to cause, damage to the natural resources
19 and environment of the State.
20 I: 54. Pursuant to the common law of the State, Shell is
21 liable to the State for the full and total value of all damages
22 caused by the Oil Spill to the natural resources and environment
23 of the State.
24
25
26
— 13 —
cOIN OID.I $3
MAM $3
II
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EIGHTH CLAIM FOR RELIEF
2
(STATE OF CALIFORNIA:
3 I WATER CODE 13304)
4 I 55. The State of California realleges the allegations
contained in paragraphs 13 through 20 above.
6 56. The oil which Shell discharged from its Complex
7 during the Oil Spill into the waters of this State was a waste,
8 was in violation of waste discharge requirements, and created a
9 condition of pollution or nuisance within the meaning of
10 California Water Code section 13304.
II 57. The Regional Water Quality Control Board for the
12 San Francisco Bay Region, and other State agencies in cooperation
13 with the Board, have expended and will continue to expend
14 available moneys to perform cleanup, abatement, or necessary
15 remedial work required under the circumstances set forth in
16 paragraph 57 above, which in the Board’s judgment was required by
17 the magnitude of endeavor or urgency of prompt action needed to
18 prevent substantial pollution, nuisance, or injury to waters of
19 the State.
20 58. Pursuant to section 13304 of the California Water
21 Code, Shell is liable to the State to the extent of the
22 reasonable costs actually incurred in cleaning up such waste,
23 abating the effects thereof, or taking other remedial action.
24
25
26
—14—
0104 13
MALS3 I
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1.
2 NINTH CLAIM FOR RELIEF
(STATE OF CALIFORNIA:
HARBORS AND NAVIGATION CODE 151)
59. The State of California realleges the allegations
contained in paragraphs 13 through 20 above.
6 : 60. During the Oil pill, Shell intentionally and
negligently caused or permittel oil from its Complex to be
8 : deposited in the waters of the State in a manner not permitted by
9 the provisions of Division Seven of the California Water Code,
10 within the meaning of section 151 of the California Harbors and
11 Navigation Code.
12 61. The Department of Fish and Game is a governmental
13 agency charged with the responsibility for cleaning up or abating
14 such oil deposit in such waters. The Department, and other State
15 agencies, have actually incurred and will continue to actually
16 incur reasonable costs in abating or cleaning up the oil deposit
17 in such waters.
18 62. Pursuant to section 151 of the California Harbors
19 and Navigation Code, Shell is liable to the State for the
20 : following:
21 e. civil liability in an amount not exceeding six
22 thousand dollars ($6,000): and
23 f. all actual damages in addition to the
24 reasonable costs actually incurred in abating or
25 cleaning up the oil deposit in such waters.
26
—15 —
VU M 010.113
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I.
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I
TENTH CLAIM FOR RELIEF
2
I (STATE OF CALIFOR}IIA:
3 FISH AND GAME CODE 5655)
4 63. The State of California realleges the allegations
5 contained in paragraphs 13 through 20 above.
6 64. The oil which Shell disc arged or deposited from
7 its Complex during the Oil Spill in the waters of this State was
8 petroleum or a petroleum product within the meaning of section
9 5655 of the California Fish and Game Code.
10 65. The Department of Fish and Game incurred costs and
11 will continue to incur costs as a result of its efforts to clean
12 up or abate the effects of Shell’s discharge or deposit of such
13 oil.
14 66. Pursuant to section 5655 of the California Fish
15 and Game Code, Shell is liable to the State for the Department’s
16 past and future costs of cleanup and abatement arising from
17 Shell’s discharge or deposit of such oil.
18 ELEVENTH CLAIM FOR RELIEF
19 (STATE OF CALIFORNIA:
FISH AND GANE CODE 12015)
20 67. The State of California realleges the allegations
21 contained in paragraphs 13 through 20 above.
22 1 68. The oil which Shell discharged from its Complex
23 during the Oil Spill caused or threatened to cause pollution,
24 contamination or obstruction to the waters of this State to the
2$ detriment to fish, plant, bird, or animal life in those waters
26
—16—
NOSD.uI3
M**U
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1
2 within the meaning of section 12015 of the California Fish and
Game Code.
3
69. The Department of Fish and Game incurred costs and
4
will continue to incur costs to remove such oil.
5
70. Pursuant to section 12015 of the California Fish
6
and Game Code, Shell is liable to the State for :he Department’s
7
past and future costs of removal of such oil.
8
TWELFTH CLAIM FOR RELIEF
9
(STATE OF CALIFORNIA:
10 WATER CODE 13350)
11 71. The State of California realleges the allegations
12 contained in paragraphs 13 through 20 above.
13 72. The oil which Shell discharged from its Complex
14 during the Oil Spill was a waste intentionally and negligently
15 discharged into the waters of the State and created a condition
16 of pollution or nuisance, in violation of waste discharge
17 requirements, a violation of subsection 13350(a) (2) of the
18 California Water Code.
19 73. Such oil was deposited in waters of the State in a
20 manner not permitted by waste—discharge requirements or other
21 provisions of Division Seven of the California Water Code, a
22 violation of subsection 13350(a) (3) of the California Water Code.
23 74. Such oil was a hazardous substance and was
24 discharged in the waters of the State in a manner not permitted
25 by waste discharge requirements or other provisions of Divis ion
26 Seven of the California Water Code. Shell created in such waters
— 17 —
OSD-1S3
MAR Si
I. ”
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1
2 a condition of pollution or nuisance, a violation of subsection
13350(b) of the California Water Code.
4 75. After due notice and public hearing, the Regional
Board adopted a resolution requesting the Attorney General to
recover civil monetary remedies under applicable state an
federal law.
7
76. Pursuant to section 13350(e) (2) of the California
8
Water Code, Shell is strictly liable for a sum not to exceed
9
twenty dollars ($20.00) for each gallon of oil discharged.
10
THIRTEENTH CLAIM FOR RELIEF
11
(STATE OF CALIFORNIA:
12 WATER CODE 13385)
13 77. The State of California realleges the allegations
14 contained in paragraphs 13 through 20 above.
15 78. The oil which Shell discharged from its Complex
16 during the Oil Spill was a pollutant discharged in a manner not
17 permitted by waste discharge requirements, a violation of section
13385 of the California Water Code.
19 79. A portion of the oil discharged was not
20 susceptible to cleanup or was not cleaned up. The exact volume
21 of oil discharged but not cleaned up is not known to the State,
22 i but upon information and belief exceeds one thousand (1,000)
23 gallons.
24 80. In the alternative to the allegations contained in
25 the Twelfth Claim for Relief, and pursuant to subsection
26 13385(b)(l) of the California Water Code, Shell is strictly
liable for a sum not to exceed twenty—five thousand ($25,000) for
I —18—
MOIO.IU
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1
2 each day of discharge. Moreover, pursuant to section
3 13385(b)(2), Shell is liable for an additional su not to exceed
4 twenty—five dollars ($25) times the number of gallons by which
the volume of oil discharged but not cleaned up exceeds one
6 tho.isand (1,000) gallons.
FOURTEENTH CIJ IM FOR RELIEF
7
(STATE OF CALIFORNIA:
8 GOVERNMENT CODE 66641.5)
9 81. The State of California realleges the allegations
10 contained in paragraphs 13 through 20 above.
11 82. The San Francisco Bay Conservation and Development
12 Commission (“BCDC”) was created by the McAteer-Petris Act,
13 Government Code sections 66600—66. In establishing the McAteer-
14 Petris Act, the California Legislature found that the San
15 Francisco Bay is the “most valuable single natural resource” of
16 the entire Bay region, and it authorized BCDC to plan and
17 regulate uses in the Bay.
18 83. Under the McAteer-Petris Act, any person wishing
19 to place fill, to extract materials, or to make any substantial
20 change in use of any water, land or structure within BCDC’s
21 jurisdiction must first obtain a permit from BCDC. Government
22 Code section 66632(a). “Fill” is defined to include ‘earth or
23 any other substance or material.” “Materials” means items
24 exceeding twenty dollars ($20) in value. Government Code section
25 66632(a).
26 84. Shell is a ‘person” within the meaning of the
I McAteer-Petris Act. The Oil Spill occurred within the
—19—
OSD.1 13
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1
2 jurisdiction of BCDC. Government Code section 66610(a). The oil
3 discharged by Shell during the Oil Spill was a thick, crude oil
valued at more than twenty dollars ($20) and constitutes “fill’
and a substantial change in the use of water within the meaning
6 of the McAteer-Petris Act. This discharge of oil therefore
required a permit from BCDC., Government Code section 66632(a).
8 Shell never obtained a permit for the discharge of oil resulting
from the Oil Spill.
85. Any person who violates the provisions of the
10
McAteer-Petris Act is subject to a civil penalty not to exceed
11
five—thousand dollars ($5,000). Government Code section
12
66641.5(a). In addition, any person who intentionally and
13
knowingly undertakes any activity requiring a permit without
14
obtaining a permit is subject to a civil penalty of not less than
15
fifty dollars ($50) nor more than five thousand dollars (55,000)
16
for each day in which that violation occurs or persists.
17
Government Code section 66641.5(b),(c). Shell intentionally and
18 I
knowingly undertook the activity that led to the Oil Spill and is
19
subject to civil penalties under Government Code section
20
66641.5(a)-(c).
21
FIFTEENTH ClAIM FOR RELIEF
22
(STATE OF CALIFORNIA:
23 PUBLIC RESOURCES CODE 29610)
24 86. The State of California realleges the allegations
25 contained in paragraphs 13 through 20 above.
26 87. BCDC also administers the Suisun Marsh
Preservation Act, California Public Resources Code sections
—20—
IM 0D.II)
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1
2
3
4.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24 h
25
26
29000-606, an act designed to protect the many acres of wetlands
comprising the Suisun Marsh.
88. Any person wishing to undertake any development in
the Marsh must first obtain a marsh development permit. Public
Resources Code section 29500. Any development within the Act’s
primary management area must,be issued by the BCDC. Public
Resources Code section 29501.
89. Shell is a person within the meaning of the Suisun
Marsh Preservation Act and its discharge of crude oil resulting
from the Oil Spill constitutes developmentR within the meaning
of the Act. Public Resources Code section 29114. Because the
Oil Spill occurred within BCDC’s primary management area, Shell
was required to obtain a permit from BCDC.
90. Any person who intentionally or negligently
undertakes any development in violation of the Suisun Marsh
Preservation Act is subject to a civil fine not to exceed five
thousand dollars ($5,000). Public Resources Code section
29610(a). Any person who knowingly and intentionally violates
the Act is subject to a civil fine of not less than fifty dollars
($50) a day and not more than five thousand dollars ($5,000) a
day for each day in which the violation occurs or persists.
Public Resources Code section 29610(b),(c). Shell negligently,
knowingly and intentionally undertook the activities described in
this Complaint, and is subject to civil fines or penalties under
Public Resources Code sections 29610(a) and 29610(b),(c).
— 21 —
fOIM OID.IS
HAl 13
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II
1 ___________________
SIXTEENTH CLAIM FOR RELIEF
2
(CITIES OF BENICIA AND MARTINEZ, COUNTIES OF
3 SOLANO AND CONTRA COSTA, CALIFORNIA STATE LANDS CO)O(ISSIO)
I CALIFORNIA DEPARTMENT OF PARKS AND RECREATION,
4 I AND EAST BAY REGIONAL PARK DISTRICT:
TRESPASS)
51 . .
Ii 91. Plaintiffs Cities of Benicia and Martinez,
Counties of Solano and Contra Costa, California State Lands
I Commission, California Department of Parks and Recreation, and
8 : East Bay Regional Park District reallege the allegations
contained in paragraphs 13 through 20.
10 92. As a result of the Oil Spill, oil from the Complex
entered onto lands and/or waters owned, operated, managed and/or
12 controlled by the above—named Plaintiffs.
13 93. As a proximate result of this trespass, the use of
14 said lands and/or waterways were damaged.
15 94. As a proximate result of this trespass, the above—
16 i named Plaintiffs suffered damages including but not limited to
17 response costs, loss of tax and other revenue, damage to
18 reputation, and damage to its lands and recreational facilities.
19 SEVENTEENTH CLAIM FOR RELIEF
20 (CITIES OF BENICIA AND MARTINEZ, COUNTIES OF
SOLANO AND CONTRA COSTA, CALIFORNIA STATE LANDS CO!*IISSION,
21 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION,
AND EAST BAY REGIONAL PARK DISTRICT;
22 - NUISANCE)
23 95. Plaintiffs Cities of Ber*icia and Martinez,
24 Counties of Solano and Contra Costa, California State Lands
25 Commission, California Department of Parks and Recreation, and
26
—22—
tM@IP.lS3
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1
2 East Bay Regional Park District reallege the allegations
3 contained in paragraphs 13 through 20 above.
4 96. Shell’s discharge of oil onto the lands and/or
waters owned, operated, managed and/or controlled by the above—
named Plaintiffs constituted a nuisance.
6
97. As a proximater result of this nuisance, the use of
8 these resources was impaired and the resources were damaged.
98. As a proximate result of this nuisance, damages
were incurred which include but are not limited to loss of
101
recreational opportunities, damage to lands and resources, and
11
response costs. As a further result of this nuisance, the above-
12
named Plaintiffs suffered damages to reputation and suffered the
13
loss of tax and other revenues.
14
EIGHTEENTH CLAIM FOR RELIEF
15
(CITIES OF BENICIA AND MARTINEZ, COUNTIES OF
16 SOLANO AND CONTRA COSTA, CALIFORNIA STATE LANDS COMMISSION,
AND CALIFORNIA DEPARTMENT OF PARKS AND R.ECRZATION:
17 NEGLIGENCE)
18 99. Plaintiffs Cities of Benicia and Martinez,
19 Counties of Solano and Contra Costa, California State Lands
II
20 ‘; Commission, and California Department of Parks and Recreation
21 reallege the allegations contained in paragraphs 13 through 20
above.
23 100. Shell owed a legal duty to the above-named
24 Plaintiffs to exercise due care and to comply with all applicable
25 Federal and State laws and regulations in the operation of its
26 complex.
— 23
M O$D.1S3
MAl $3
II
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1
- 101. Shell breached this legal duty by causing the
2
unlawful discharge of oil from its Complex onto lands owned
3
and/or waters owned, operated, managed and/or controlled by the
4
above-named Plaintiffs.
5
102. As a proximate result of this i 1 legal and
6
I negligent discharge, the above-named Plaintiff . suffered damages
including but not limited to response costs, luss of tax and
8
other revenue, damage to reputation, and damage to lands and
9
recreational facilities.
10
11 PRAYER FOR RELIEF
12
WHEREFORE,
13 A. PLAINTIFF UNITED STATES RESPECTFULLY REQUESTS THAT THIS
14 COURT:
15 1. As to the First Claim for Relief, find Shell
16 liable to the United States for actual costs incurred relating to
17 the removal of oil, including, but not limited to, any costs or
18 expenses for the restoration or replacement of natural resources
19 damaged or destroyed as a result of the discharge of oil, or the
20 acquisition of resources equivalent to those damaged by the
21 discharge of oil, and enforcement costs, and order Shell to pay
22 all such costs, together with prejudgment and postjudgment
23 interest.
24 2. As to the Second Claim for Relief, find Shell
25 liable to the United States for fifty thousand dollars ($50,000)
26 in penalties for violations of its NPDES permit number CA 005789.
—24
010.113
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1
3. Grant to the United States such further relief as
this Court may deem just and proper.
4
B. PLAINTIFF STATE OF CALIFORNIA RESPECTFULLY REQUESTS ThAT
5
THIS COURT:
6
1. As to the First Claim for Relief, find Shell
7
liable to the State of California for actual costs incurred
8”
• relating to the removal of oil, including, but not limited to,
9
any costs or expenses for the restoration or replacement of
10
natural resources damaged or destroyed as a result of the
11
discharge of oil, or the acquisition of resources equivalent to
12
those damaged by the discharge of oil, and enforcement costs, and
13
order Shell to pay all such costs, together with prejudgment and
14
postjudgment interest.
15:.
I 2. As to the Fifth Claim of Relief, find Shell liable
16
to the State of California for all actual damages to the State’s
17
natural resources and for costs incurred by the State to clean up
18:
the oil, or to abate the effects of the discharge of oil, or
19
1 both, including enforcement costs, and order Shell to pay all
2O
such damage and costs together with prejudgment and postjudginent
21
interest.
22 3. As to the Sixth Claim For Relief, find Shell liable
23 to the State of California for all the detriment proximately
24 caused by the taking or destruction of birds, mammals, fish,
25 reptiles or ainphibia protected by the laws of the State, and
26
— 25 —
lOIN OSD.I$3
NAl II
Ii
I.
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1
2 order Shell to pay for all such detriment together with
3 prejudgment and postjudgment interest.
4. As to the Seventh Claim For Relief, find Shell
4
liable to the State of California for the full and total value of
5
all damages caused y the Oil Spill to the natural resources and
environment of the £tate, and order Shell to pay for all such
7 C
damages, together with prejudgment and postjudginent interest.
8
5. As to the Eighth Claim For Relief, find Shell
91
liable to the State of California to the extent of the reasonable
10
costs actually incurred in cleaning up such waste, abating the
11
I! effects thereof, or taking other remedial action, and order Shell
12
to pay for all such costs together with prejudgment and
13
postjudgment interest.
14 I
6. As to the Ninth Claim For Relief, find Shell liable
to the State of California for civil liability in an amount not
16 exceeding six thousand dollars ($6,000) and all actual damages in
17 addition to the reasonable costs actually incurred in abating or
18 cleaning up the oil deposit in such waters, and order Shell to
19 pay for all such civil liability, damages and costs, together
20
with prejudgment and postjudgment interest.
21 7. As to the Tenth Claim For Relief, find Shell liable
22 to the State of California for the Department’s past and future
23 costs of cleanup and abatement arising from Shell’s discharge or
24 deposit of such oil, and order Shell to pay for all such costs,
25 together with prejudgment and postj udgment interest.
26
—26—
V MOSD.IS3
MAR 13
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1
2 8. As to the Eleventh Claim For Relief, find Shell
liable to the State of California for the Department’s past and
future costs of removal of such oil, and order Shell to pay for
all such costs, together with prejudgment and postjudgment
interest.
6
9. As to the Twelfth Claim For Relief, find Shell
7
liable to the State of California for a sum not to exceed twenty
dollars ($20) for each gallon of oil discharged, and order Shell
9.
to pay such sum, together with prejudgment and postjudgment
10 I.
I interest.
11
10. As to the Thirteenth Claim for Relief, in the
12
alternative to the remedy requested under the Twelfth Claim for
13
Relief, find Shell strictly liable to the State of California for
14
a sum not to exceed twenty-five thousand dollars ($25,000) for
15’
each day of discharge and liable for an additional sum not to
16’
exceed twenty—five dollars ($25) times the number of gallons by
17
which the volume of oil discharged but not cleaned up exceeds one
18
I thousand (1,000) gallons, and order Shell to pay such sum,
191;
together with prejudgeinent and postjudgment interest.
20’
11. As to the Fourteenth Claim For Relief, find Shell
21 ,: liable to the State of California for a civil penalty not to
exceed five thousand dollars ($5,000), and for a civil penalty of
23 not less than fifty dollars ($50) nor more than five thousand
24 dollars ($5,000) for each day in which the violation occurs or
persist., and order Shell to pay such civil penalties, together
26 with prejudgment and postjudginent interest.
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12. As to the Fifteenth Claim For Relief, find Shell
2
liable to the State of California for a civil fine not to exceed
3
five thousand dollars ($5,000), and for a civil fine of not less
4
than fifty dollars ($50) a day and not more than five thousand
5
dollars (S5,000) for each day in which the violation occurs or
6
persists, and order Shell to,pay such ivi1 fines or penalties,
7
together with prejudgment and postjudg.nent interest.
8
13. Grant to the State of California such further
9
relief as this Court may deem just and proper.
10
11
C. PLAINTIFF, THE PEOPLE OF THE STATE OF CALIFORNIA, BY AND
12
THROUGH THE DISTRICT ATTORNEY OF CONTRA COSTA COUNTY AND TIlE
13 DISTRICT ATTORNEY OF SOLANO COUNTY, RESPECTFULLY REQUESTS THAT
14
THIS COURT:
15 1. As to the Third Claim for Relief, find Shell
16 liable for violations of Health and Safety Code section 25189(d)
17
and impose a penalty of twenty five thousand dollars ($25,000)
18 per day for each day of violation.
19 2. As to the Fourth Claim for Relief, find Shell
20 liable for violations of Business and Professions Code section
21 17200 and impose a penalty of two thousand five hundred dollars
22 ($2,500) per day for each day of violation.
23 3. Grant the People of the State of California, by
24 and through the District Attorney of Contra Costa County and the
25 District Attorney of Solano County, such further relief as this
28 Court may deem just and proper.
—28—
MAuI I
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1••
2
D. PLAINTIFF, CONTRA COSTA COUNTY, RESPECTFULLY REQUESTS
THAT THIS COURT:
1. As to the Sixteenth, Seventeenth, and Eighteenth
Claii is for Relief, find Shell liable for nuisance, trespass, and
7 negligence as a result of the Oil Spill and oLder Shell to pay
all costs incurred by Contra Costa County as a result of the Oil
Spill, as well as actual damages according to proof.
2. Grant to Contra Costa County such further relief
10
as this Court may deem just and proper.
11
12
E. PLAINTIFF, SOLANO COUNTY, RESPECTFULLY REQUESTS TEAT
13
THIS COURT:
14
1. As to the Sixteenth, Seventeenth, and Eighteenth
15
Claims for Relief, find Shell liable for nuisance, trespass, and
16
negligence as a result of the Oil Spill and order Shell to pay
17
all costs incurred by Solano County as a result of the Oil Spill,
18
as well as actual damages according to proof.
19
2. Grant to Solano County such further relief as this
2O
Court may deem just and proper.
21
221’
F. PLAINTIFFS CITY OF BENICIA, CITY OF MARTINEZ, CONTRA
23 !i
COSTA COUNTY, SOLANO COUNTY, CALIFORNIA STATE LANDS COI*IISSION
24 , AND CALIFORNIA DEPARTMENT OF PARES AND RECREATION RESPECTFULLY
25 REQUESTS THAT THIS COURT:
26 -29-
PUSM 010413
MAl I)
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1
I 1. As to the Sixteenth, Seventeenth, and Eighteenth
2
Claims for Relief, find Shell liable to each of the above—named
3
Plaintiffs for damages according to proof.
2. Grant to each of the above-named Plaintiffs such
SI
further relief as this Court may deem just and proper.
61j
7
G. PLAINTIFF EAST BAY REGIONAL PARK DISTRICT RESPECTFULLY
8
REQUESTS THAT THIS COURT:
9
1. As to the Sixteenth and Seventeenth Claims for
10
Relief, find Shell liable to the East Bay Park District for
11
damages according to proof.
12
2. Grant to the East Bay Regional Park District such
13
further relief as this Court may deem just and proper.
14
Respectfully submitted,
17 RICHARD B. STEWART
Assistant Attorney General
18 Land & Natural Resources Division
21 Acting Assistant Chief
VALERIE ANN LEE
- Trial Attorney
Department of Justice
Land and Natural Resources Division
Environmental Enforcement Section
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633—4291
26
—30—
SMOSD.IS3
MA& Si
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t&,
, JOSEPH P. RUSSONIELL
3 U.S. Attorney for the Northern
4 District of California
Chief, Civil Division
7 ‘ 450 Golden Gate Avenue
San Francisco, CA 94102
8 (415) 556—1126
9
Attorneys for the United States
1o
11 OF COUNSEL:
12 JOHN W. BURI
U.S. Department of the Interior
13 Office of the Solicitor
450 Golden Gate Ave.
14 San Francisco, CA 94102
15 LAURIE KERNISH
I UGH BARROLL
16 Office of Regional Counsel
U.S. Environmental Protection Agency
17 215 Fremont Street
San Francisco, California 94105
18
J. MARTIN ROBERTSON
19 U.S. Department of the Navy
100 Van Ness Avenue
20 San Francisco, California 94102
21
22;
2311
24
251
26
—31—
.— OSO.IU
MAl Ii
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I
2
3 JOHN K. VAN DE KAMP
Attorney General of the State of
4 California
1 ROBERT H. CONNETT
5 Assistant Attorney General
SARA J. RUSSELL
6 1 ‘MICHAEL W. NEVILLE
Deputy Attorneys General
7 Natural Resources Section
N. GREGORY TAYLOR
8 1 Assistant Attorney General
PATRICIA SHEEHAN PETERSON
9 I JOSEPH 3. BARBIERI
I Deputy Attorneys General
10 Land Law Section
350 McAllister Street, Room 6000
11 I: San Francisco, CA 94102
(435) 557—1,
12
13
14 By:
15
16 j Attorneys for Plaintiff State of
California ex rel. Department of
17 Fish and Game, State Lands
Commission, Regional Water
18 Quality Control Board for the San
Francisco Bay Region, Department
19 of Parks and Recreation and San
Francisco Bay Conservation and
20 Development Commission
21
22
23
24
25
26
— 32 —
MOID.IU
MAl $3
SARA J. RUSS:
,&& S I S ISI4l 4ISj$
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coaw OSD.1S3
M I 13
By:
GARY T. YANCEY
District Attorney
JAMES L. SEPULVEDA
Deputy District Attorney
Office of the District Attorney
Court House, 4th Floor
P.O. Box 670
Martinez, CA 94553
(415) 646—4527
— 33 —
Attorneys for Plaintiffs Contra
Costa County and People of the
State of California in and for
the County of Contra Costa
& . . ISI Na..I4..i
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1 MIKE NAIL
District Attorney
2 MARK S. POLLIOCK
Deputy District Attorney
3 Environmenta] Crimes Unit
Ha]] of Justice
4 600 Union Avenue
Fairfield, CA 94533
r (4]5) 429—6
6
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14
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16
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20
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22
23
24
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By:
Attorneys for Plaintiffs So]ano
County and People of the State of
California in and for the County
of So]ano
— 34 —
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ii
1
2 p
3 ‘• HOWARD STERN
WALTER & PISTOLE, P.C.
4 Waterfall Towers
2455 Bennett Valley Road,
5 1! Suite 302B
Santa Rosa, CA 95404
6 , (707) 523—0732
By:
HOWARD STERN
10 Attorneys for Plaintiffs Cities of
Benicja and Martinez
11
12
13
14
15
16
17
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21
22
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— 35 —
SM 010.113
wAl $3 • v.& S ’ 1N .IsaIa,mi.aa
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1
2
3; NED N. ISOKAWA
CROSBY, HEAFEY, ROACH & MAY
4 Professional Corporation
1999 Harrison Street
5 Oakland, CA 4 6l 2
(415) 763—2OO
6 1
By: 1’tL4. i u cr
8 NED N. ISOKAWA
9!
Attorneys for Plaintiff East Bay
10 Regional Park District
11
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22
23
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— 36 —
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S C:
:E ;N:s T O Rt ERBA, ;:LE ) 89”• 554
A..FR GZR3A: RO5ERT R DND

T-E RANCH AT RO RI G FORK MO E-
OWNERS ASSOCIATION, INC., a
Colorado Non-profit Corp rat on,
Defendants.
COMPLAINT
Plaintiff, United States of America, by authority
of the Attorney General and at the request of the Administrator
of the United States Environmental. Protection Agency, for its
Complai.nt alleges as follows:
1. This is a civil action instituted under the Clean
Water Act (hereinafter WCWAa), pursuant to CWA § 309(b), 33
u.S.C. § 1)19(b), to obtain injunctive re)lef and the iz position
of c .v2.l penalties for defendants’ fa .1ure to cotply with CWA §
301(a), 33 U.S.C. § 1311(a).
2. Author .ty to bring this suit is vested in the
United States Department of Justice by 28 U.S.C. § 516 and § 519
and 33 U.S.C. § 1366.
3. This Court has 3ur sd ct on over the sub3ect rnatter
of th s action pursuant to CWA 5 309(b), 33 U.S.C. S 1319(b), ar.
u.S.C. §5 1331.. 345. and 1355. Notice of t e C er . e e t of
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s a: :or. has beer. ;_ve’ : the S:a :e of 1crado ps.a- :
C A § 309(b), 23 U.S.C. § :2:9 .b), ar.d S U.S.C. § 39.
4. Venue s proper r. the )ud o L d s :r : : cf
C: rado purs ar.t t C A § 309(b). 3) U.S.C. § D:9 b), a :
U.S.C. 5 13:9.
5. Defendants er.r. s Theodore Cerba:, N Le Af:e
Ger az, L.arry Cerbaz, and Robert Ray ond Nieslanik are, ar. a:
all t: es pert .nent to th:s co pla .nt have been, resLder.ts of
Carbortdale, Colorado.
6. Defendant The Ranch at Roar ng Fork Homeowners
Xssociation, Inc., is, and at all times pertinent to this
Complaint has been, incorporated in and does business under the
laws of the State of Colorado.
7. At all times pertinent to this complaint Defendants
owned certain property in or near sections 35 and 36, T 7 S, R 83
W adjacent to the Roar .ng Fork River in Garfield County in
Carbondale, Colorado.
CLAIM FOR RELIEP
8. Plaintiff incorporates herein the allegat .ons set
forth in paragraphs 1 through 7.
9. Section 301(a) of the WA, 33 U.S.C. § 1311(a),
prohibits the discharge of any pollutant from a point source nt
waters of the United States, except when discharged n co .p1.iar.ce
with, inter alia , a pe it issued by the Secreta ’ of the Army,
acting through the ChLef of Engineers, pursuant to C A § 404, 33
U.S.C. § 1344 (a Sec: on 404 Pert).
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— —
LC. CWA § 30 ( ), u.S.C. § . (a). r:’.’..des f::- a
a t..cr for a;or:;r:a:e re_ef, a pe a er: or
te ;c 3z-y r ct .cr , aga.rst ay person w .o v o1ates seo::cn
3o:ca) of : e CWA. fl U.S.C. § (a).
11. As cf Feb: arv 5, 1937, Seot on C9(d1 cf e : .
33 U.S.C. § 1319(d), provides that any person ho v o1a:es
Sect:on 301(a) of the CWA, 33 U.S.C. § 1311(a), shall be su eo:
to a c v l penalty not to exceed $25,000 per day per vio1at cn.
Pr.or to February 5, 1987, Section 309(d) Cf the CWA, 33 U.S.C. §
1319, provided for a civil penalty not to exceed Sl0,000 per day
of violation.
12. The Roaring Fork River (River) constitutes “waters
of the United States”, within the teaning of Section 502 of the
CWA, 33 U.S.C. § 1362(7), 33 C.F.R. § 328.3(a), and 40 C.F.R. §
122.2.
13. At various times from 1984 to the present,
Defendants conducted dredge arid fill activities which entailed
the discharge of fill material from a point source to waters of
the United States, to wit the Roaring Fork River. Fill fron
these activities is still present today. The dredging and
filling occurred at several sites in the River on and near
Defendants’ property described above in paragraph 7.
- 14. The fill material from the activities descr.bed .r.
paragraph 13 remains in the River to the date of filing of th s
Co p1a irit.
15. Defendants d d not obtain peits, pursuant to
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— —
Se:: .cr. ;0 . o z te CWA, 23 u.S.C. § o ccu; ; e
at v. .ties desc :bed n pa ag ap L3.
16. The Sec eta y of the has not issued Se ::cr.
434 pe :ts to defendar.:s the d scha ges described i.-.
a agraph 12.
17. Defendants eref re have vi 1ated and c :nue
v o1ate CWA § 301(a), 33 C.S.C. § 1311(a).
18. Each day, ithou: exception, that the dredge and
f l1 material ret ains in the River without a permit issued
pursuant to CWA § 404, 33 U.S.C. § 1344, constitutes art
independent violation of CWA § 301(a), 33 U.S.C. § 1311(a).
19. Pursuant to CWA § 309(b) and (d), 33 U.S.C. §
1319(b) and (d), the United States is entitled to injunctive
relief and civil penalties not to exceed $10,000 per day from the
first date of violation until February 4, 1987, and $25,000 per
day from February 5, 1987, to the present for violations of C’rJA §
301(a), 33 U.S.C. § 1311(a).
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, The United States of America,
prays that:
1. Defendants be permanently enjoined fror any and all
future violations of the CWA and froo discharging any dredged or
fill =aterial or any bther pollutant to waters of the United
States except when expressly authorized by a permit issued
pursuant to the appropriate section of the CWA;
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-S
2. Defendar tS be cr ered to 1rpie e t an appropr:ate
:est:rat on plan for those parts of tne R:ver affected by t e
Defendant’s act vit es to be approved by the ted States
vne tal ?rotect on Agenoy and the Cn ted States A v Cor:s
of Zng neers:
3. Defendants be assessed, pursuant to CWA § 309(d),
3) U.,S.C. § 1319(d), a civil penalty notto exceed ten thousar.d
dollars ($10,000) for each day of violation of CWA § 301(a), 33
U.S.C. § 1311(a), which occurred prior to February 5, 1987, and
twenty five thousand dollars ($25,000) for each day of violation
of CWA § 301(a), 33 U.S.C. § 1311(a), which occurred after
February 5, 1987;
4. Plaintiff be awarded its costs and disbursements in
this action, and;
5. This Court grant such other relief as may be just
and proper.
Respectfully submitted,
p
t’kflA LX
DONALD A. CARR
Acting Assistant Attorney General
Land and Natural Resources Division
C .—i - --
SUSAN L. SMITH!
DAVID 3. KAPL I, Attorneys
Environmental Defense Section
Land and Natural Resources Division
U.S. Department of Justice
P.O. Box 23986
Washington, D.C. 20026—3986
(202) 633—2219/2162
/_
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—6
C A L 3. NORTON
Ur. ted States Att3rney
OF COUNSEL:
LOURDES BUFILL , Attorney
U. S. E nvLronmenta l
Protection Agency
Office of Compliance Monitoring
401 M Street, S.W.
Washington, D.C. 20460
— , - A L-’ ,& :L .
BRUCE 0. RAY, Specia . Assistar.:
U.S. Attorney
c/o U.S. Environmental Protect .or.
Agency, Region VIII
999 Eighteenth Street, Suite 500
Denver, Colorado 80202
(303) 294—7182
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FILED
IN THE iJNI ED STATES DISTRICT COIJRT
FOR THE NORTHERN DISTRICT OF INDIANA n i
HAM VND DIVISION ‘ U .L LE6
UNITED STATES OF AMERICA, ) RJCHARDLTIMMONS,
U.S. DISTRICT COURT
Plaintiff, ) ‘CT o N IAhI.
)
v. ) CIVIL ACTION NO.
)
INLAND STEEL COMPANY, )
Defendant. H86’ 29
COM PLA I NT
Plaintiff, the United States of AlDerica, by authority of
the Attorney General and at the request of the Administrator of the
United States Environmental Protection Agency (“EPA”) , alleges
that;
NATURE OF ACTION
1. This is a civil action brought pursuant to Section
309(b) and (d) of the Clean Water Act (“the Act”), 33 U.S.C.
§5 1319(b) and (d), for injtn ctive relief and for assessment of a
civil penalty against Inland Steel Company for violations of Section
301 of the Act, 33 U.S.C. S 1311, and certain terms and conditions
of its National Pollutant Discharge Elimination Syst n (“NPDES”)
permit issued pursuant to Section 402 of the Act, 33 U.S.C. S 1342,
concerning the defendant’s laboratory test procedures and discharge
of pollutants into navigable waters.
2. This Court has jurisdiction over the subject i atter of
this action pursuant to 28 U.S.C. 1 5 1331. 1345 and 1355, and
Section 309 of the Act, 33 U.S.C. S 1319. Notice of the commenc ent
of this action has been given to the State of Indiana.
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—2-
THE DEFENDANT
3. Inland Steel Company (“Inland”) is a corporation
organized and existing under the laws of Delaware. Inland owns and
operates an iron and steel mill (“plant”). The plant, which
includes a water analysis laboratory (“laboratory”) , is located at
3210 Watling Street, East Chicago, Indiana.
4. Inland discharges and at relevant times did discharge
pollutants within the meaning of Section 502(12) of the Act, 33
U.S.C. § 1362(12), from the mill into the Indiana Harbor and the
Indiana Harbor Ship Canal.
5. The Indiana Harbor and the Indiana Harbor Ship Canal
each is a “navigable water” as defined by Section 502(7) of the
Act, 33 U.S.C. § 1362(7).
THE STATUTE
6. Section 301(a) of the Act, 33 U.S.C. S l3ll(a)
prohibits the discharge of pollutants except in accordance with
Section 301 of the Act, 33 U.S.C. S 1311, and as authorized by and
in compliance with a permit issued pursuant to Section 402 of the
Act, 33 U.S.C. S 1342.
7. Section 402 of the Act, 33 U.S.C. S 1342, provides
that EPA or an authorized state may issue NPDES permits for the
discharge of pollutants upon the condition that such discharge will
meet certain requirements of the Act or will meet such conditions
as the Administrator determines necessary to carry out the provision.
of the Act.
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—3—
8. Section 308 of the Act, 33 U.S.C. $ 1318, provides
that, whenever required to carry out the objectives of the Act, the
EPA or an authorized state may require the owner or operator of a
point source to establish and maintain records, make reports,
install, use and maintain monitoring equipment and methods, and
sample effluents in accordance with such methods as the Admini-
strator shall prescribe.
INLAND’S NPDES PERNIT
9. On July 23, 1976, the EPA issued NPDES permit No.
1N0000094 to Inland. The permit authorized the discharge of pol-
lutants from the Inland plant into the Indiana Harbor and Indiana
Harbor Ship Canal subject to the terms and conditions of the permit.
On March 2, 1984, the Indiana Stre Pollution Control Board
(“ISPCB”) , which is authorized to issue NPDES permits pursuant to
Section 402(b), 33 U.S.C. § 1342(b), reissued NPDES permit No.
1N0000094, with some modifications, effective March 6, 1984 and
with an expiration date of February 28, 1989. These permits are
attached hereto as Exhibits A (July 23, 1976) and B (March 6,
1984), and are collectively referred to as Inland’s “permit.”
10. Inland’s NPDES permit prescribes monitoring, testing,
and reporting requirements, and effluent limitations for the discharge
of pollutants from outfalls at the plant, including those referred
to as discharge outfalls 001, 601, 002, 201, 007, 011., 012, 206,
014, 613, 614, 618, 018, 101, and 103. The NPDES permit establishes
effluent limitations for several pollutants, including total suspended
solids (“TSS”), lead, zinc, cyanide, phenols, ammonia, biocheiiical
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-4-
oxygen demand (“BOD”), pH, chlorine, fecal coliform bacteria, and
oil and grease. The NPDES permit also establishes monitoring
requirements for several pollutants, including chromium, copper,
nickel, sulfate, fluoride, chloride, iron, flow, temperature, and
acid.
ii. Inland is required and at relevant times was required
by its NPDES permit to conduct sampling and analyses of the plant’s
effluent. Inland also is required, and at relevant times was
required, to submit the results of its analyses to the ISPCB
each month in Discharge Monitoring Reports (“DMR”), and to
submit supplements to its DMR’s which report any conditions that
indicate abnormal effluent quality (“Non-compliance Notification”).
12. Inland conducts at its plant, and at relevant times
did conduct at its plant, sampling and analyses of the plant’s
effluent. Inland submits and at relevant times did submit the
results of its measurements to the ISPCB in DMR’s and Noncompliance
Notifications. Inland’s DMR’s and Noncompliance Notifications
are signed and certified by Inland’s authorized representative
pursuant to 40 C.F.R. 55 122.41 and 122.22.
13. Inland’s NPDES permit provides that:
“Test procedures for analysis of pollutants
shall conform to regulations published pur-
suant to Section 304(h) of the Act, the most
recent edition of “Standard Methods For The
Examination Of Water And Wastewater,” or
other methods approved b 7 the Indiana Stream
Pollution Control Board.’
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14. Under the authority of Section 304(h), 33 U.s.c.
S 1314(h), the Administrator of EPA pr iu1gated regulations entitled
“Guidelines Establishing Procedures For The Analysis Of Pollutants,”
codified at 40 C.F.R. S 136, which incorporate by reference “Standard
Methods for Examination of Water and Wastewater” (“Standard Methods”)
and other sources containing approved test procedures.
15. Inland is required, and at times relevant to this
action was required, by its NPDES perTnit, to conduct all sampling
and analyses required by its NPDES permit in conformity with
test procedures that are approved under 40 C.F.R. S 136.
16. 40 CSF.R. § 136 and the sources incorporated by
reference therein establish requir nents which cover, inter alia,
frequency of and methods for collection of samples; sample size;
holding times and preservation techniques; laboratory methodologies;
standards for laboratory equipment; maintenance of records; and
general laboratory conditions and quality control, applicable to
the sampling and analysis of, inter alia, BOD, TSS, fecal coliform,
ammonia, cyanide, phenol, oil and grease, and chlorine.
LABORATORY PROCEDURES
17. On March 6 and 7, 1984, the EPA conducted a Performance
Audit Investigation (“PAl”) of Inland’s laboratory to determine
whether Inland’s laboratory procedures were consistent with the
terms and conditions of its NPDES permit, 40 C.F.R. S 136, and
“Standard Methods.”
18. On March 6 and 7, 1984, Inland did not follow laboratory
procedures required by its NPDES permit, 40 C.F.R. S 136, and
“Standard Methods”.
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-6-
19. On lnfor atLon and belief, at times prior to March 6
and 7, 1984, Inland did not follow laboratory procedures required
by its NPDES permit, 40 C.F.R. S 136, and “Standard Methods.”
20. On March 6 and 7, 1984, Inland utilized laboratory
procedures in analyzing Bioch ica1 Oxygen D and (SOD 5 ) which do
not conform to test procedures required by its NPDES permit,
40 C.F.R. § 136, and “Standard Methods.” Inland’s departures from
the required methodology include the following:
(a) Use of the s e unseeded dilution water for a period
of 2-3 days, causing a blank oxygen depletion of greater than 0.2
rng/L for samples set up on the second and third days;
(b) Use of a thermometer that is not traceable to the
National Bureau of Standards (NBS), in measuring the BOD incubator
temperature;
Cc) Failure to either check water samples from the waste-
water treatment plant for chlorine, or to dechlorinate tham, prior
to testing;
(d) Use of insufficient quantity of bacteria population in
performing the test;
(e) Failure to record SOD incubator tenperatures; and
(f) Storage of SOD bottles at incorrect temperature.
21. On March 6 and 7, 1984, Inland utilized laboratory
procedures in analyzing Total Suspended Solids (TSS) which do not
conform to test procedures required by its NPDES permit, 40 C.F.R.
S 136, and “Standard Methods.” Inland’s departures from the approved
methodology include the following:
(a) Failure to enpioy a post washing of the residue after
sample filtration;
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-7-
(b) Operation of TSS drying oven at 96° C rather than at
105° C;
(c) Use of a thermometer that is not traceable to the NBS;
(d) Failure to keep a temperature log of the TSS drying
oven;
(e) Failure to dry TSS filters to ensure a Constant
weight; and
(f) Failure to change dessicant.
22. On March 6 and 7, 1984, Inland utilized laboratory
procedures in analyzing Fecal Coliform which do not conform to test
procedures required by its NPDES permit, 40 C.F.R. S 136, and
“Standard Methods.” Inland’s departures from the required methodology
include the following:
(a) Failure to dechlorinate saiiples from the wastewater
plant at the time of collection;
(b) Failure to follow approved methodology in handling
and filtering samples, cleaning glass re, and conducting
procedures for which sterile conditions are required;
(c) Subjecting the test’s growth medium to excessive
heat;
(d) Use of incorrectly conditioned rinsing water in
conducting the test;
(e) Failure to conduct annual tests of the laboratory
water to determine its bacteria quality, and hence, its suitability
for use in conducting the required tests;
(f) Use of a thermometer that is incorrectly graduated
and not calibrated against a thermometer that is traceable to
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—8-
the NBS, in measuring the temperature of the fecal c liform water
bath incubator;
(g) Calculation of
by an arithmetic rather than
(h) Preparation of
hours prior to conducting the
(i) Failure to keep logs of the t nperatures of the
refrigerated medium and of the coliform incubator.
23. On March 6 and 7, 1984, Inland utilized laboratory
procedures in analyzing Total Cyanide which do not conform to test
procedures required by its NPDES permit, 40 C.F.R. S 136, and
“Standard Methods.” Inland’s departures from required methodology
include the following:
(a) Use of an unapproved Technicon AA-II procedure; and
(b) Analyses of cyanide samples after a 24-hour holding
time.
24. On March 6 and 7, 1984, Inland utilized laboratory
procedures in analyzing Total Phenol which do not conform to test
procedures required by its NPDES permit, 40 C.F.R. § 136, and
“Standard Methods.” Inland’s departures from required methodology
include the following:
(a) Use of an unapproved Technicon AA-II procedure;
(b) Analyses of the phenol samples after a 24-hour holding
time; and
(c) Use of NaOH rather than H 2 S0 4 for preserving samples.
25. On March 6 and 7, 1984, Inland utilized laboratory
procedures in analyzing Oil and Grease which do not conform to test
procedures required by its NPDES permit, 40 C.F.R. 5 136, and
the fecal colifortn bacteria limitations
by the required geometric mean;
the test’s growth medium more than 96
test; and
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-9-
“Standard Methods.” Inland’s departures than required methodology
include the following:
(a) Failure to extract s nples more than once, and use
of only 50 mls of freon in extracting sample;
(b) Use of a 250-400 ml swxiple size, which is smaller than
required; and
(c) Heating the Freon extraction on a hot plate rather
than in the required water bath.
26. On March 6 and 7, 1984, Inland utilized laboratory
procedures in analyzing chlorine which do not conform to test
procedures required by its NPDES permit, 40 C.F.R. S 136, and
“Standard Methods.” Inland’s departures from required methodology
include the use of an unapproved orthotolidine color comparison
ethod.
27. On March 6 and 7, 1984, the sanpie holding times and
preservation techniques used by Inland for samples of phenol,
ammonia, oil and grease, heavy metals, and fecal coliforms did not
conform to those required by its NPDES permit, 40 CSF.R. 5 136,
and “Standard Methods.”
28. On March 6 and 7, 1984, Inland’s laboratory procedures
did not conform to the requirements for quality control set forth
in its NPDES permit, 40 C.F.R. S 136, and “Standard Methods.”
Inland’s departures from the requirements include the following:
(a) Use of laboratory thermometers which are not calibrated
against in NBS thermometer;
(b) Failure to keep te perature logs for ovens, incubator.,
or water baths; and
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(c) Eating and smoking in the laboratory.
29. Inland has been informed of the results of the PAl
conducted on March 6 and 7, 1984.
30. On February 7, 1985, the EPA conducted a second
Performance Audit Investigation of Inland’s laboratory to determine
whether violations present at the time of the 1984 PAl had been
corrected, and whether Inland’s laboratory procedures were consistent
with the terms and conditions of its NPDES permit, 40 C.F.R. S 136,
and “Standard Methods.”
31. On February 7, 1985, Inland had failed to correct
several of the nonconforming procedures recited above in paragraphs
20-28, and had failed to follow certain other laboratory procedures
required by its NPDES permit, 40 C.F.R. S 136, and “Standard Methods.”
32. On information and belief, before and after
February 7, 1985, Inland did not folow laboratory procedures
required by its NPDES permit, 40 C.F.R. 5136, and “Standard
Methods.”
33. On February 7, 1985, Inland utilized laboratory
procedures in analyzing Biochemical Oxygen Demands (8OD ) which do
not conform to test procedures required by its NPDES permit, 40
C.F.R. S 136, and “Standard Methods.” Inland’s departures frcm
required methodology include the following:
(a) Use of a thermometer which is not traceable to the
National Bweau of Standards (PIES) in measuring the BOD incubator
t perature;
(b) Failure to regularly record BOD incubator t peratures;
(c) Storage of SOD bottles at incorrect temperature; and
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(d) Use of BOD bottles which contain air bubbles, in
violation of the requir nent that they not contain air bubbles.
34. On February 7, 1985, Inland utilized laboratory procedures
in analyzing Fecal Coliform which do not conform to test procedures
required by its NPDES permit, 40 C.F.R. S 136, and “Standard Methods.”
Inland’s departures from required methodology include the following:
(a) Failure to follow approved methodology in handling
and filtering samples, cleaning glassware, and conducting procedures
which require sterile conditions;
(b) Failure to conduct annual test of the laboratory
water to determine its bacteria quality and hence its suitability
for use in conducting the required tests;
(c) Use of a thermometer which is incorrectly graduated
and not calibrated against a thermometer that is traceable to
the NBS, in measuring the temparature of the fecal coliform water
bath incubator;
(d) Failure to record either the time that testing is
begun or the identity of the analyst;
(e) Failure to keep records of the sa iple volumes filtered
or of the dilutions factor;
(f) Failure to keep logs on the teDperature of the
refrigerator; and
(g) Incubation of sa p1es at incorrect t nperatures.
35. On February 7, 1985, Inland utilized laboratory
procedures in analyzing Total Cyanide which do not conform to test
procedures required by its NPDES permit, 40 C.F.R. 5 136, and
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“Standard Methods,” including distilling a blank with each set of
saDples, but failing to regularly distil 8tandards.
36. On February 7, 1985, Inland utilized laboratory
procedures in analyzing Total Phenol which do not conform to test
procedures required by its NPDES permit, 40 C.F.R. § 136, and
“Standard Methods.” Inland’s departures from required methodology
include the following:
(a) Preparation of 4 AAP reagent only once or twice per
week, rather than daily; and
(b) Failure to conduct daily analyses of standards with
the samples.
37. On February 7, 1985, Inland utilized laboratory
procedures in analyzing Oil and Grease which do not conform to test
procedures required by its NPDES permit, 40 C.F.R. S 136, and
“Standard Methods,” including the use of a 1-liter separatory
f .u ne1 instead of the prescribed glass f mnel.
38. On February 7, 1985, Inland utilized laboratory
procedures in analyzing Chlorine which do not conform to test
procedures required by its NPDES permit, 40 C.F.R. S 136, and
“Standard Methods,” including analyzing s ples after delays of
between 10 and 30 minutes.
39. On February 7, 1985, Inland’s laboratory procedures
did not conform to the requirements for quality control set
forth in its NPDES permit, 40 C.F.R. S 136, and “Standard Methods.”
Inland’s departures from the requirements include the following:
(a) Use of laboratory thermometers which are not calibrated
against an NBS thermometer; and
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(b) Eating and smoking occurs in the laboratory.
40. Inland has been informed of the results of the PAl
conducted on February 7, 1985.
41. On January 22-24, 1985, the EPA conducted a Compliance
Sampling Inspection (“CSI”) at Inland’s plant to determine whether
the test results reported by Inland in its DMR’s and Noncompliance
Notifications are accurate, and to determine whether Inland was in
compliance with the effluent limitations of its NPDES permit.
42. As part of the CSI, EPA collected effluent samples,
pursuant to its authority tnider Section 308 of the Act, 33 U.S.c.
§ 1318. EPA and Inland split samples and each conducted its own
anaylsis of the samples.
43. The results of Inland’s tests for cyanide were
approximately 50% lower than were the results from the EPA’s tests
for cyanide.
EFFLUENT LIMIT EXCEEDANCES
44. Since the reissuance of its NPDES permit on March 2,
1984, Inland has submitted Noncompliance Notifications and monthly
DMR’s to the ISPCB, in which Inland has reported discharges of
chlorine, TSS, BOD, pH, zinc, lead, ammonia, and phenol, in excess
of the effluent limitations of its NPDES permit.
45. The chart attached hereto as Exhibit C and incorp-
orated herein by reference, accurately reflects the dates on
which Inland discharged chlorine, TSS, BOD, pH, zinc, lead, ammonia,
and phenol, in excess of the parameters in its NPDES permit.
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46. T ..ts conducted by EPA as pa of the CSI revealed
that on January 22-24, 1985, Inland’s discharges throug1 outfalls
002, 007, 011, 012, and 014 contained discharges of phenol of
644 lbs. per day. These discharges are in excess of the daily
maximum limit for phenol of 100 lbs. per day.
FIRST CLAIM FOR RELIEF
47. The allegations set forth in Paragraphs 1 through
43, inclusive, are realleged and incorporated herein by reference.
48. As alleged in paragraphs 18 through 28, and 31 through
39, and 43, Inland has deviated fr laboratory procedures set forth
in “Standard Methods,” and fran laboratory procedures incorporated by
reference into 40 C.F.R. § 136, promulgated under Section 304(h)
of the Act, 33 U.S.C. S 1314(h), and required under Inland’s NDPES
permit. Each such deviation is a separate violation of Section 30].
of the Act, 33 U.S.C. H 1311, and the conditions and limitations
of Inland’s NPDES permit issued under Section 402 of the Act, 33
U.S.C. § 1342, whIch implement Sections 301 and 308 of the Act.
49. Section 309(b) and (d) of the Act, 33 U.S.C. S 1319(b)
and (d), authorizes plaintiff to c mence a civil action for appropriate
relief, including injunctive relief and civil penalties not to
exceed $10,000 per day, when any person is in violation of Section
301 of the Act, 33 U.S.C. S 1311, or of any condition or limitation
of a permit issued under Section 402, which linpienent Sections 301 and
308 of the Act.
50. on information and belief, unless restrained by an
order of this Court, Inland will continue to violate Section 301
of the Act, 33 U.S.C. 55 1311, and the conditions and limitations
of its NPDES permit issued under Section 402 of the Act, 33 U.S.C.
S 1342, which impl e nent Sections 301 and 308 of the Act.
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SECONDCLAIM FOR RELIEF
51. The allegations set forth in paragraphs 1 through 16
and 41-46, inclusive, are realleged and incorporated herein by
reference.
52. As alleged in paragraphs 41 through 46 and in Exhibit
C, Inland has discharged pollutants through point sources into
navigable waters in excess of the effluent limitations of its
NPDES permit.
53. Inland’s discharges of pollutants in excess of levels
authorized by its NPDES permit violates Section 301 of the Act,
33 U.S.C. § 1311, and the conditions and limitations of its NPDES
permit issued under Section 402 of the Act, 33 U.S.C. S 1342, which
implement Section 301 of the Act.
54. Section 309(b) and (d) of the Act, 33 U.S.C. S 1319(b)
and (d), authorize plaintiff to commence of a civil action for
appropriate relief, including injunctive relief and civil penalties
not to exceed $10,000 per day, when any person is in violation of
Section 301 of the Act, 33 U.S.C. S 1311, or of any condition or
limitation of a permit issued under Section 402 implementing Section
301 of the Act.
55. On information and belief, z 1ees restrained by an
order of this Court, Inland will continue to violate Section 301
of the Act, 33 U.S.C. §5 1311, and the conditions and limitations
of its NPDES permit.
PRAYER FOR RELIEF
VHEREFORE, the United States of America prays that:
1. Inland be permanently enjoined from all future
violations of the Act and of the conditions and limitations of its
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NPDES permit, and from discharging pollutants except as expressly
authorized by the Clean Water Act and by Inland’s NPDES permit;
2. Inland be ordered to comply with the terms and
conditions of its NPDES permit, including but not limited to
immediately performing tests and analyses in conformity with 40
C.F.R. § 136 and “Standard Methods”, reporting accurate data in
its DMR’s, and complying with the effluent limitations in its
NPDES permit.
3. Inland be assessed, pursuant to Section 309(d) of the
Act, 33 U.S.C. S 1319(d) , a civil penalty not to exceed ten
thousand dollars ($10,000.00) for each day of violation of its
permit and of Section 301 of the Act, 33 U.S.C. S 1311, up to the
date of judgment herein;
4. The United States be awarded the costs and disburse-
ments of this action; and
5. This Court grant the United States such other relief
as it may de just and proper.
Respectfully submi ted,
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
JA) S C. RICHI’VND
United States Attorney
Northern District of Indiana
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:f ’/
ANDRE J L BAKER / —
Assistant United States A torney
Northern District of Indiana
Federal Building
507 State Street
Hammond, Indiana 46320
Telephone: (219) 937-5215
\_
ROS L. CONNEALY
Attorney, Environmental Enforcement
Sect ion
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
Telephone: (202) 633-2807
OF COUNSEL:
MARIA E. OROZCQ
U.S. Invironmental Protection
401 II Street, S.W.
Washington, D.C. 20460
Telephone: (202) 475-8184
&k4f d’ fr”
BARBARA A. GER
Attorney, Environmental Enforcement
Section
Land and National Resources Division
U.S. Department of Justice
Washington, D.C. 20530
Telephone: (202) 633-4113
• 1 ’iV . 2 (1
ARTHUR E. SMITH, JR.
Associate Regional Counsel
U.S. Environmental Protection
Agency - Region V
230 South Dearborn Street
Chicago, Illinois 60604
Telephone: (312) 886-4253
By
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r h C.
E icj or ,
IN THE UNITED STATES DISTRICT COURT I . 1016 4 ‘89
FOR THE DISTRICT OF MASSACHUSETTS U -
I , - ‘ •
-
UNITED STATES OF AMERICA, )
) CIVIL ACTION No.
Plaintiff,
)
V.
)
JAMES RIVER PAPER COMPANY, INC., )
)
Defendant.
)
COMPLAINT
Plaintiff, the United States of America, at the request of
the Administrator of the Environmental Protection Agency (‘EPA’),
and by its undersigned counsel alleges as follows:
INTRODUCTORY STATEMENT
1. This is a civil action brought pursuant to Section
311(b) (6) (3) of the Clean Water Act (‘the Act’), 33 U.S.C.
1321(b) (6) (B), for assessment of a civil penalty against
defendant, James Paper River Company (hereinafter referred to as
‘James River’), for its discharge of hazardous substances in
violation of Section 311(b) (3) of the Act, 33 U.S.C. §
1321(b)(3). The violation resulted in the discharge of hazardous
substances into Buttery Brook and the Connecticut River.
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject matter of
this action pursuant to 28 U.S.C. § 1345 and Section 311(b) (6) (B)
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—2—
of the Act, 33 U.S.C. 4 1321(b)(6)(3). Notice of the
commencement of this action has been given to the Commonwealth of
Massachusetts.
3. Venue is proper in this district pursuant to 28 U.S.c. §
1391(b) and Section 311(b) (6) (B) of the Act, 33 U.S.C. §
1321(b) (6) (B), since it is the judicial district in which
defendant is located and where the alleged violation occurred.
DEFENDANI
4. Defendant, James River, is a corporation duly organized
in the Commonwealth of Virginia, qualified to do business in the
Commonwealth of Massachusetts, and owns and operates a coated
paper and sensitized film manufacturing facility in South Had]ey,
Massachusetts (hereinafter referred to as ‘the facility’). James
River handles solvents, including toluene, at the facility.
CLAIM FOR RELIEF
5. Section 311(a) (6) of the Act, 33 U.S.C. § 1321(a) (6),
defines an ‘owner or operator’ as ‘any person owning or operating
(an] onshore facility’ and Section 311(a) (7), 33 U.S.C. 4
1321(a) (7), defines the term ‘person’ to include a ‘firm,
corporation, association and partnership.’ James River is an
‘owner or operator’ within the intendment of the Act.
6. Section 311(b) (3) of the Act, 33 U.S.C. § 1321(b) (3),
prohibits the discharge of oil or hazardous substances, in such
quantities as may be ‘harmful’, into or upon the navigable waters
of the United States. Section 311(b) (4) of the Act, 33 U.S.C. §
1321(b) (4), states that the President shall promulgate
regulations defining the amount of oil and hazardous st.thstances
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the discharge of which may be harmful. The regulation -
promulgated pursuant to Section 311(b) (4) of the Act, 33 U.S.C.
1321(b) (4), 40 C.F.R. § 117.1(a), provides that quantities that
may be ‘harmful’ are defined as “reportable quantities.’
7. Pursuant to 40 C.F.R. § 116.4, toluene is a ‘hazardous
substance’ as that term is defined in Section 311(b) (2) of the
Act, 33 U.S.C. § 1321(b)(2). The reportable quantity of toluene
is 1,000 pounds. 40 C.F.R. § 117.3. A discharge of 1,000 pounds
or more of toluene into or upon the navigable waters of the
United States is a violation of Section 311(b) (3) of the Act, 33
U.S.C. § 1321(b)(3).
8. Buttery Brook and the Connecticut River are ‘navigable
waters’ of the United States within the meaning of Section 502(7)
of the Act, 33 U.S.C. § 1362(7), and 40 C.F.R. 4 122.2.
9. Section 311(b) (6) (B) of the Act, 33 U.S.C. 4
1321(b) (6) (B), authorizes the United States to bring civil
actions to impose a penalty for the violation of Section
311(b) (3) of the Act, 33 U.S.C. § 1321(b)(3). The amount of such
penalty may not exceed $50,000.00 for each offense, except that
where the United States can show that the violation was the
result of willful negligence of the defendant, the penalty may
not exceed $250,000.00.
10. On January 2, 1988, James River discharged solvent
consisting of 1,000 pounds or more of toluene at the facility
into or upon Buttery Brook, which is a tributary of the
Connecticut River.
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11. James River’s unauthorized discharge of toluene in
excess of the reportable quantity violated Section 311(b) (3) of
the Act, 33 U.S.C. 1321(b)(3). The United States is entitled
to civil penalties for this violation pursuant to Section
311(b) (6) (B) of the Act, 33 U.S.C. § 1321(b) (6) (B).
PRAYER FOR RELIEF
WHEREFORE, plaintiff, united States of America, respectfully
prays that the Court:
A. Impose a civil penalty in the amount of $50,000.00 upon
James River for its violation of Section 311 of the Act, 33
U.S.C. § 1321.
B. Grant plaintiff its costs and disbursements of this
action.
C. Grant such further relief as the Court deems just.
Respectfully submitted,
DONALD A. CARR
Acting Assistant Attorney General
Land and Natural Resources Division
PETER A. fULLIN
United States Attorney
By: ‘ “h
Assistant United States Attorney
1107 John W. McCormack Fed. Bldg.
U.S. Post Office and Courthouse
Boston, Ma. 02109
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—5—
Hen y S. Friedman
At t d’rn e y
Land and Natural Resources Djvj j 0
U.S. Department of Justice
Washington, D.C. 20530
(202) 633—5268
OF COUNSEL:
PETER KENYON
Assistant Regional Counsel
U.S. E.P.A., Region I
John K. Kennedy Federal Building
Boston, Ma. 02203
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IN THE UNITED STATES DISTRICT CO’ RT
FOR THE DISTRICT OF NEW HAMPSHIRE
UNITED STATES OF AMERICA,
Plaintiff,
v. ) Docket No.
CONSTRUCTION INDUSTRIES, INC.;
PAUL GARABEDIAN and SONS, INC.;
CPJ TRUST CONSTRUCTI N INDUSTRIES
TRUST; PAUL GARABEDIAN, JR., )
in his capacities as TRUSTEE of
CONSTRUCTION INDUSTRIES TRUST, )
and TRUSTEE of CPJ TRUST; and
CHARLES GARABEDIAN, in his
capacities as TRUSTEE of
CONSTRUCTION INDUSTRIES TRUST,
and TRUSTEE of CPJ TRUST.
Defendants.
____________________ )
COMPLAINT
THE UNITED STATES OF AMERICA, at the request of the
Administrator of the United States Environmental Protection
Agency, alleges that:
1. This is a civil action commenced under section 309
(b),(d) of the Clean Water Act (CWA”), 33 U.S.C. § 1319 (b),
(d), to obtain injunctive relief and civil penalties against the
defendants, for their failure to comply with CWA section 301(a),
33 U.S.C. § 1311(a).
JVRISDICTION AND VENUE
2. This Court has jurisdiction over the subject
matter of this action pursuant to 28 U.S.C. § 1331, 1345, and
1355, and pursuant to CWA section 309(b), 33 U.S.C. § 1319(b).
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3. Venue is proper in the District of New Hampshire
pursuant to 28 U.S.C. § 1391(b), and CWA section 309(b), 33
U.S.C. § 1319(b).
4. Authority to bring this action is vested in the
United States Department of Justice pursuant to 28 U.S.C. § 516
and § 519.
5. Notice of the commencement of this action has been
given to the State of New Hampshire pursuant to CWA section
309(b), 33 U.S.C. § 1319(b).
DEFENDANTS
6. Construction Industries, Inc. ( “CII ”) is a
corporation organized under the laws of the State of New
Hampshire.
7. Paul. Garabedjan and Sons, Inc. ( “PGSI”) is a
corporation organized under the laws of the State of New
Hampshire.
8. CPJ Trust (“CPJ”) is a trust formed under the laws
of the State of New Hampshire.
9. Construction Industries Trust (“CIT”) is a trust
formed under the laws of the State of New Hampshire.
10. Paul Garabedian, Jr. is a trustee of CPJ and CIT.
authorized to conduct business for CPJ and CIT.
11. Charles Garabedjan is a trustee of CPJ and CIT,
authorized to conduct business for CPJ and CIT.
12. Defendant CIT has a place of business at 67 Salem
Street, Salem, New Hampshire, and each of the other five
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defendants have a place of business at 179 Main Street, Salem,
ew Hampshire.
13. Each of the six defendants is and/or has been
engaged in the business of construction and real estate
development in New Hampshire.
14. Upon information and belief, CII and PGSI are
privately held corporations, owned and controlled by defendant
Paul Garabedi n, Jr., and b ’ various members of thc family of
Paul Garabedian, Jr.; and the trustees of CPJ and CIT are various
members of the family of Paul Garabedian, Jr. -
ALLEGATIONS
15. Each of the defendants is a “person” as defined by
CWA section 502(5), 33 U.S.C. § 1362(5).
16. CWA section 301(a), 33 U.S.C. § 1311(a), prohibits
the discharge of pollutants into navigable waters by any person
except as in compliance with, inter qua , a permit issued by the
Secretary of the Army pursuant to CWA section 404, 33 U.S.C. §
1344.
17. CWA section 404(a), 33 U.S.C. § 1344(a), provides
that the Secretary of the Army may issue permits for the
discharge of dredged or fill material into navigable waters at
specified disposal sites after notice and an opportunity for
public comment.
18. The real property that is the subject of this
action is located on five lots of land, known as ‘Lots 5, 7, 9,
11, and 13’ Garabedian Drive, Salem, New Hampshire, and the five
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lots are collectively known as the “State Line Industrial Park”
(“the Site”)
19. The Site is located in Salem, New Hampshire,
adjacent to the Spicket River, a primary tributary of the
Merrimack River.
20. The five lots that make up the Site contain
wetlands adjacent to the Spicket River.
21. The w J nds at the Site drain into the Spic-k t
River, which flows through Salem, New Hampshire, and into the
Merrimack River in Methuen, Massachusetts. The Merrimack River,
in turn, flows through Massachusetts and into the Atlantic Ocean.
22. CWA section 502(7), 33 U.S.C. § 1362(7), defines
“navigable waters” as “waters of the United States”.
23. “Waters of the United States” are defined by 33
C.F.R. § 328.3(a)(1), (3), (5) and (7), and by 40 C.F.R. §
232.2(q) (1), (3), (5), and (7) to include the following: (i) all
waters which are currently used, were used in the past, or may be
susceptible to use in interstate or foreign commerce; (ii)
tributaries to such waters; (iii) wetlands adjacent to such
waters or their tributaries; and (iv) all other waters such as,
among other things, rivers or wetlands, the use, degradation or
destruction of which could affect interstate or foreign commerce.
24. The Spicket River, the wetlands adjacent to the
Spicket River at the Site, and the Merrimack River are all
“waters of the United States” and hence, are “navigable waters”,
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as that term is defined in CWA section 502(7), 33 U.S.C. §
1362 (7)
25. At all times relevant to this complaint, the Site
was owned and/or controlled by one or more of the defendants.
26. At various times since September 1, 1976, on dates
known more particularly to the defendants, one or more of the
defendants discharged or caused to be discharged into the
wetlands t the Site fill ateri 1s consisti of rock, sand,
soil, construction debris, and other solid waste.
27. The fill materials were discharged into the
wetlands at the Site by the use of trucks, bulldozers and other
construction equipment.
28. The rock, sand, soil, construction debris, and
solid waste fill materials discharged or caused to be discharged
at the Site by defendants are “pollutants,’ as defined by CWA
section 502(6), 33 U.S.C. § 1362(6).
29. The various motor vehicles and other construction
equipment used by defendants to discharge pollutants into the
wetlands at the Site are ‘point sources,” as defined by CWA
section 502(14), 33 U.S.C. § 1362(14).
31. The discharges of fill materials into waters of
the United States by the defendants are “discharges of a
pollutant,” as defined by CWA section 502(12), 33 U.s.c.
§ 1362(12).
32. None of the defendants applied for or obtained a
permit from the Secretary of the United States Army, acting
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personally or through the Army Corps of Engineers (the “Corps”),
prior to discharging fill materials into the wetlands at the five
(5) lots that make up the Site.
33. At no time has the Secretary of the Army, acting
for himself or through the Corps, issued any of the defendants a
permit pursuant to CWA section 404, 33 U.S.C. § 1344, authorizing
the discharge of fill materials into the wetlands at any of the
five (5) lots thit ‘ ake up the Site.
FIRST CLAIM FOR RELIEF
34. The United States hereby realleges and
incorporates herein by reference paragraphs 6-33 above.
35. At various times since September 1, 1976, on dates
known more particularly to the defendants, one or more of the
defendants discharged fill materials or caused fill materials to
be discharged into the freshwater wetlands at the lot known as
“Lot 13” of the Site.
36. Portions of the wetlands filled or caused to be
filled by the defendants at Lot 13 of the Site are now used for a
building and certain supporting facilities (such as a parking
lot) that have been constructed there by one or more of the
defendants.
37. The defendants have violated section CWA 301(a),
33 U.S.C. § 1311(a), by their unpermitted discharges of fill
materials into the wetlands at Lot 13 of the Site.
38. Each day that such fill re aina in the wetlands at
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Lot 13 of the Site constitutes a separate violation of CWA
section 301(a), 33 U.S.C. § 1311(a).
39. CWA section 309(b), 33 U.S.C. § 1319(b),
authorizes the United States to commence a civil action for
appropriate relief, including a permanent or temporary
injunction, for violations of CWA section 301(a), 33 U.S.c.
§ 1311(a). Pursuant to CWA section 309(d), 33 U.S.C. § 1319(d),
any person who violates CW sectic n 3O1( ) shall be subject to a
civil penalty not to exceed $25,000.00 per day of violation
occurring on and after February 5, 1987, and not to exceed
$10,000.00 per day of violation occurring before February 5,
1987.
SECOND CLAIM FOR RELIEF
40. The United States hereby realleges and
incorporates herein by reference paragraphs 6—33 above.
41. At various times since September 1, 1976, on dates
known more particularly to the defendants, one or more of the
defendants discharged fill materials or caused fill materials to
be discharged into the freshwater wetlands at the lot known as
“Lot 11- of the Site.
42. Portions of the wetlands filled or caused to be
filled by the defendants at Lot 11 are now used for a building
and certain supporting facilities (such as a parking lot) that
have been constructed there by one or more of the defendants.
43. The defendants have violated CWA section 301(a),
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33 U.S.C. § 1311(a), by their unpermitted discharges of fill
materials into the wetlands at Lot 11 of the Site.
44. Each day that such fill remains in the wetlands at
Lot 13 of the Site constitutes a separate violation of CWA
section 301(a), 33 U.S.C. § 1311(a).
45. CWA section 309(b), 33 U.S.C. § 1319(b),
authorizes the United States to commence a civil action for
appropriate rq]ief, in’luding a permanent r ter ”rary
injunction, for violations of CWA section 301(a), 33 U.S.C. §
1311(a). Pursuant to CWA section 309(d), 33 U.S.C. § 1319(d), any
person who violates CWA section 301(a) shall be subject to a
civil penalty not to exceed $25,000.00 per day of violation
occurring on and after February 5, 1987, and not to exceed
$10,000.00 per day of violation occurring before February 5,
1987.
THIRD CLAIM FOR RELIEF
46. The United States hereby realleges and
incorporates herein by reference paragraphs 6-33 above.
47. At various times since September 1, 1976, on dates
known more particularly to the defendants, one or more of the
defendants discharged fill, materials or caused fill materials to
be discharged into the freshwater wetlands at the lot known as
‘LOt 9’ of the Site.
43. Upon information and belief, no structures have
bean built on the wetlands filled or caused to be filled by the
defendants at Lot 9 of the Site.
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49. The defendants have violated CWA section 301(a),
33 U.S.C. § 1311(a), by their unpermitted discharge of fill
materials into the wetlands at Lot 9 of the Site.
50. Each day that such fill remains in the wetlands at
Lot 9 of the Site Constitutes a separate violation of CWA section
301(a), 33 U.S.C. § 1311(a).
51. CWA section 309(b), 33 U.S.C. § 1319(b),
authorizes the TTnjted t teo tn c ommonre civil actior. f’ r
appropriate relief, including a permanent or temporary
injunction, for violations of CWA section 301(a), 33 U.S.C.
§ 1311(a). Pursuant to CWA section 309(d), 33 U.S.C. § 1319(d),
any person who violates CWA section 301(a) shall be subject to a
civil penalty not to exceed $25,000.00 per day of violation
occurring on and after February 5, 1987, and not to exceed
$10,000.00 per day of violation occurring before February 5,
1987.
FOURTH CLAIM FOR RELIEF
52. The United States hereby realleges and
incorporates herein by reference paragraphs 6-33 above.
53. At various times since September 1, 1976, on dates
known more particularly to the defendants, one or more of the
defendants discharged fill materials or caused fill materials to
be discbarg.d into the freshwater wstlands at the lot known as
“Lot 7” of tha Site.
54. Upon information and belief, no structures have
—9—
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been built on the wetlands filled or caused to be filled by the
defendants at Lot 7 of the Site.
55. The defendants have violated CWA section 301(a),
33 U.S.c. § 1311(a), by their unpermitted discharges of fill
materials into the wetlands at Lot 7 of the Site.
56. Each day that such fill remains in the wetlands at
Lot 7 of the Site constitutes a separate violation of CWA section
301(a), 33 t’.s.’. c 1311(a).
57. CWA section 309(b), 33 U.S.C. § 1319(b),
authorizes the United States to commence a civil action for
appropriate relief, including a permanent or temporary
injunction, for violations of CWA section 301(a), 33 U.S.C.
§ 1311(a). Pursuant to CWA section 309(d), 33 U.s.c. § 1319(d),
any person who violates section 301(a) shall be subject to a
civil penalty not to exceed $25,000.00 per day of violation
occurring on and after February 5, 1987, and not to exceed
$10,000.00 per day of violation occurring before February 5,
1987.
FIFTH CLAIM FOR RELIEF
58. The United States hereby realleges and
incorporates herein by reference paragraphs 6—33 above.
59. At various times since September 1, 1976, at times
known more particularly to the defendants, one or more of the
defendants discharged fill materials or caused fill materials to
be discharged into the freshwater wetlands at the lot known as
‘Lot 5’ of the Site.
— 10 —
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60. Upon information and belief, no structures have
been built on the wetlands filled or caused to be filled by the
defendants at Lot 5 of the Site.
61. The defendants have violated CWA section 301(a),
33 U.S.C. § 1311(a), by their unpermitted discharges of fill
materials into the wetlands at Lot 5 of the Site.
62. Each day that such fill remains in the wetlands at
Lot 5 of the Site cnnstitutes a separate violation of CWA section
301(a), 33 U.S.C. § 1311(a).
63. CWA section 309(b), 33 U.S.C. § 1319(b),
authorizes the United States to commence a civil action for
appropriate relief, including a permanent or temporary
injunction, for violations of CWA section 301(a), 33 U.S.C.
§ 1311(a). Pursuant to CWA section 309(d), 33 U.S.c. 1319(d),
any person who violates section 301(a) shall be subject to a
civil penalty not to exceed $25,000.00 per day of violation
occurring on and after February 5, 1987, and not to exceed
$10,000.00 per day of violation occurring before February 5,
1987.
PRAYER FOR RELIEF
WHEREFORE, the United States respectfully requests
that:
1. The defendants, or any combination of them, be
permanently enjoind from discharging additional fill materials
or other pollutants into the freshwater wetlands at any of the
— 11 —
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lots of the Site except in Compliance with a permit issued
pursuant to CWA section 404, 33 U.S.C. § 1344 ; and,
2. The defendants, or any combination of them, be
enjoined to:
(a) Restore all wetlands at the Site at their owi
expense and at the direction of the United States, through the
Environmental Protection Agency, to their condition prior to the
unauthorized li:chargcs; except i’ thos- portior of the Site
where restoration is not feasible. Such restoration shall
include, without limitation, the removal of all unlawfully
discharged fill materials and wetlands revegetation; or,
(b) Undertake measures, at the defendants’ own
expense and at the direction of the the Environmental. Protection
Agency, to create new wetlands and fully replace the functional
value of the unlawfully filled wetlands that cannot be restored;
and,
3. The defendants be assessed, jointly and
severally, pursuant to CWA Section 309(d), 33 U.S.C. § 1319(d), a
civil penalty not to exceed ten thousand dollars ($10,000) for
each day of each violation of CWA section 301(a), 33 U.S.c.
§ 1311(a), up to and including February 4, 1987, and not to
exceed twenty-five thousand dollars ($25,000) for each day of
each violation of CWA section 301(a), 33 U.S.C. § 1311(a), since
and including February 5, 1987; and,
4. The United States be awarded costs and
— 12 —
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disbursements in this action, and granted such further relief as
this Court deems appropriate.
Respectfully submitted,
RICHARD B. STEWART
Assistant Attorney General
U.S. Department of Justice
Land & Natural. Resources Division
ROBERT LEPEVRE, t may -
Environmental. De n a Section
Washington, D.C. 0530
(202) 633—2216
OF COUNSEL:
MARX A. STEIN
Assistant Regional Counsel
Office of Regional Counsel
U.S. Environmental Protection
Agency
Boston, Ma.
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IIL-B.-C. Discovery
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
BAYOU MARCUS LIVESTOCK AND AGRICULTURAL )
COMPANY, A Florida General Partnership )
and THE COLONY BAYOU MARCUS COMPANY, a
Florida General Partnership )
CASE NO. 88-3O275-W
Plaintiffs and )
Counterclaim Defendants,
V.
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY and UNITED )
STATES ARMY CORPS OF ENGINEERS )
)
Defendants and )
Counterclaim Plaintiffs. )
)
AMENDED
UNITED BTATEB’ INTERROGATORIES
The United States of America (“United States ), through
its undersigned attorneys, requests that Bayou Marcus Livestock
and Agricultural Company, the Colony Bayou Marcus Company, s.
Victor, Robert Capp, Kenneth W. Ness, and Hana Investment Company
answer under oath the following interrogatorieg pursuant to the
provisions of Rule 33 of the Federal Rule of Civil Procedure. In
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14. The term ‘adjacent’ as used in these interrogatories
has the same meaning that the term ‘adjacent’ has in 33 C.F.R. §
328.3(a) (7) and (C) (1987).
15. The phrase ‘navigable waters of the United States’ as
used in these interrogatories means an area constituting
navigable waters of the United States within the meaning of the
River and Harbors Act of 1899, 33 U.S.C. § 403, and 33 C.F.R. §
329.4 (1987).
16. ‘Relating to’ means constituting, defining, containing,
embodying, reflecting, identifying, stating, referring to,
dealing with, or in any way pertaining to.
17. ‘And’ as well as ‘or’ shall be construed either
disjunctively or conjunctive].y as necessary to bring within the
scope of these interrogatories any information which might
otherwise be construed to be outside their scope.
18. If defendant does not know the answer to any
interrogatory, identify the person(s) who know(s) or would be
expected to know the answer to such interrogatory.
19. The obligations imposed upon defendant by Rules 26, 33
and 34 of the Federal Rules of Civil Procedure are hereby
incorporated by reference, including, but not limited to, the
duty to supplement imposed by Rule 26(e).
INT!RROGATORI!p
INTERROGATORY NO. 1 :
Are you the owner of the property? If so, provide the
following information:
5
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(•) The purpose of the placement of the material; and
(f) The identity of each person who participated in
any way in the activity and the identity of each
person who ordered, authorized or requested the
activity.
INTERROGATORY NO. 5 :
Do you contend that prior to the filling or discing
activities on the property any portion of the property was not a
wetland? If so, provide the following information:
(a) Specify with reference to the map or survey
requested in Interrogatory No. 3 what portion or
portions of the property you contend was not a
wetland:
(b) Identify the facts supporting your contention;
(C) Identify each person either employed or consulted
by you who has knowledge, or claims to have -
knowledge, of any of the facts stated in your
response to the previous subpart; and
(d) Summarize the substance of ti- knowledge of each
person identified in your re onse to the previous
subpart.
INTERROGATORY NO. 6 :
Do you contend that the Bayou Marcus Creek is not a water of
the United States? If so, provide the following information:
(a) Identify the facts supporting your contention:
(b) Identify each person either employed or consulted
by you who has knowledge, or claims to have
knowledge, of any of the facts stated in your
response to the previous subpart: and
(C) Summarize the substance of the knowledge of each
person identified in your response to the previous
subpart.
INTERROGATORY NO • 7 :
7
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portion of the property does not support a prevalence of wetland
vegetation during all or any portion of the year? If SO, provide
the following information:
(a) Specify with reference to the map or survey
requested in Interrogatory No. 3 what portion or
portions of the property you contend does not
support a prevalence of wetland vegetation under
normal circumstances;
(b) Identify the facts supporting your contentions;
(c) Identify each person either employed or consulted
by you who has knowledge, or claims to have
knowledge, of any facts stated in your response to
the previous subpart; and
(d) Summarize the substance of the knowledge of each
person identified in your response to the previous
subpart.
INTERROGATORY NO. 10 : -
Do you contend that the property is not adjacent to a water
of the United States? Is so provide the following information:
(a) Identify the facts supporting your contention;
(b) Identify each person either employed or Consulted
by you who has knowledge, or claims to have
knowledge, of any facts stated in your response to
the previous subpart; and
(C) Summarize the substance of the knowledge of each
person identified in your response to the previous
subpart.
INTERROGATORy NO • 11 :
Have you or your agents obtained or applied for any local,
state, or federal permits, certificates or authorizations in
connection with the filling or development of the property?
If so, provide the following information:
(a) The date of each application;
9
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(a) The purpose of the placement of the material; and
(f) The identity of each person who participated in
any way in the activity and the identity of each
person who ordered, authorized or requested the
activity.
INTERROGATORY NO. 15 :
Do you contend that prior to the filling and discing
activities on the property any portion of the property did not
contain navigable waters of the United States? If so, provide
the following information:
(a) Specify with reference to the map or survey
requested in Interrogatory No. 3 what portion or
portions of the property you contend did not
contain navigable waters of the United States;
(b) Identify the facts supporting your contention;
(C) Identify each person either employed or consulted
by you who has knowledge, or claims to have
knovle. 4 ge, of any of the facts stated in your
response to the previous subpart; and
(d) Summarize the substance of the knowledge of each
person identified in your response to the previous
subpart.
INTERROGATORy NO. 16 :
Do you contend that the Bayou Marcus Creek is not a
navigable water of the United States? If so, provide the
following information:
(a) Identify the facts supporting your contention;
(b) Identify each person either employed or consulted
by you who has knowledge, or claims to have
knowledge, of any of the facts stated in your
response to the previous subpart; and
(C) Summarize the substance of the knowledge of each
person identified in your response to the previous
subpart.
11
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(a) Identify the facts supporting your contention;
(b) Identify each person either employed or consulted
by you who has knowledge, or claims to have
knowledge, of any of the facts stated in your
response to the previous subpart; and
(C) Summarize the substance of the knowledge of each
person identified in your response to the previous
subpart.
INTERROGATORY :
Do you contend that your operations have not impaired the
flow or circulation of Bayou Marcus Creek or other waters present
in the subject property or reduced the reach of such waters?
If so, provide the following information:
(a) Identify the facts supporting your contention;
(b) Identify each person either employed or Consulted
by you who has knowledge, or claims to have
knowledge, of any of the facts stated in your
response to the previous subpart; and
(c) Summarize the substance of the knowledge of each
person identified in your response to the previous
subpart.
INTERROGATORY NO. 21 :
Identify each person you intend or expect to call, or may
call, as a fact witness at trial, including a description of the
subject matter on which each may testify.
INTERROGATORY NO. 22 :
Identify each person you intend or expect to call, or may
call, as an expert witness at trial. For each expert witness
state the subject on which each is expected to testify, the
substance of the facts and opinion to which the expert is
13
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expected to testify and provide a summary of the grounds of each
opinion. Identify each written or recorded statement or document
made or authored by each witness which relates to the subject
matter of this case.
INTERROGATORY NO. 23 :
Identify any and all documents, including but not limited
to, surveys, studies, photographs, maps, deeds, and diagrams,
that you propose to or expect to introduce into evidence at
trial.
INTERROGATORY NO. 24 :
Identify all persons who assisted in the preparation of the
answers to these interrogatorieg and the specific interrogatory
number that each person was involved in. -
Respectfully submitted,
Dated: March”?, 1989 DONALD A. CARR,
Acting Assistant Attorney General
United States Department of Justice
Environmental Defense Section,
Room 7120
Land & Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
FRED R. DISMEROON,
Special Litigation Counsel
Room 2134
Land & Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
14
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CERTIFICATE OF MAILING
This is to certify that on this _____ day of ________________
1989, I caused a copy of the foregoing Responses to
Interrogatories to be delivered to the counsel named below by
depositing addressed copies of the same, postage prepaid, with
the U.S. Postal Service:
MARK J. PROCTOR, Esquire
Levin, Middlebrooks, Mabie, Thomas
Mayes & Mitchell, P.A.
226 South Palafox Street
Pensacola, Florida 32501
DOROTHY BOARDMAN,
Assistant District Counsel
United States Army Corps of
Engineers
P.O. Box 4970 CESAJ-OC
Jacksonville, Florida 32232-0019
CATHERINE A. WINER
Attorney
Office of General Counsel
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
EDWARD SCHWARTZ,
Assistant Regional Counsel
U.S. Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
—16 —
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED 5T TES OF AM / A
)
Plaintiff,
1 vi . Action No.
I H86—295
I
INLAND STFEL COMPANY )
)
Defendant. )
___________________________________________________________________________ )
PLAINTIFF’S FIRST SET OF INTERROGATORIES
AND REQUEST FOR PRODUCTION OF DOCUMENTS
Pu; i..ant to Fed. R. Civ. P. 26, 33, and 34, Plaintif!
United t1tes requests that Defendant Inland Steel Company
(Inl nd) answer, in writing and under oath, each of the
inter.o- ’ ones set forth below, in accordance with the ilowing
instr’ c.ions and definition, and serve answers on the undersigned
attornies, within thirty (30) days after service hereof.
INSTRUCTIONS AND DEFINITIONS
A. These interrogatonies cover and relate to all informs..
tion and documents in possession, custody or control of Inland,
their paints and subsidiaries, all predecessors and successors
of any f these entjtj.s, and each present or former director,
offices, •iployee, agent, servant, representative contractor,
expert, e orney or assign of any of the foregoing. References
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—9-
INTERROGATORy 1
Wastewater Treatment Facilities
1. (a) Describe all investigations, analyses, studies
and evaluations that relate to wastewater treatment at the
Inland facility, since 1980.
(b) Identify every person who participated, in any
manner, in any of the above investigations, analyses, BtUdieg
or evaluations and describe in detail their i diyidu&1 partici-
pation.
(a) Identify each of your officers, employees agents
or contractors with knowledge of any information requested in
part. (a) and (b) of this interrogatory.
Cd) Identify all doc nents that set forth, refer or
relate to any information requested in parts (a) — (a) of this
interrogatory.
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—10—
I NTERROGAToay2
(a) Describe each and every action that Inland has considered
since 1980 (whether implemented or net) on how to treat
and/or dispose of wastewater from its facility. Include:
(1) The description of the nature of each, (2) the date or
period of time during which each of the actions above were
considered, and (3) an identification of each person who
participated in any consideration or evaluation of each
action together with a description of each person’s partici-
pation.
(b) For each action considered, state whether the action was
actually implemented or otherwise undertaken by Inland. If
actually implemented or otherwise undertaken (including
partially implemented or undertaken actions), state the
complete expense of the action for Inland (including
operation and maintenance expense if applicable).
Cc) For each action considered but rejected or not implemented
(including non—implemented portions of actions partially
implemented or otherwise undertaken), state the reason the
action was rejected or not implemented and the estimated
expens• of the action for Inland (including operation and
maintenance expense if applicable).
Cd) Identify all documents which set forth, refer or relats
to any information requested in parts (a)—(c) of this
interrogatory.
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—11—
INTERROGATORY 3
NPDES Permit
(a) Did the Indiana Stream Pollution Control Board (ISPCB)
ever revoke or suspend permission for Inland to discharge
any wastewaters into the Indiana Harbor and the Indiana
Harbor Ship Canal?
(b) Unless the answer to part (a) of this interrogatory is an
unqualified negatives
(1) Indicate the date and effective period of each such
revocation or suspension;
(2) Describe all reasons given by ISPCB for such revocation
or suspension;
Cc) Did ISPCB ever indicate that it was considering revoking
or suspending permission for Inland to discharge any
wastewaters into the Indiana Harbor or the Indiana Harbor
Ship Canal?
Cd) Unless the answer to part Cc) of this interrogatory is an
unqualified negative, indentify each such communication
with ISPCB and describe all reasons given by ISPCB for
considering such a revocation or suspension.
Ce) Did ths ISPCB ever indicate that it believed that Inland
was or might be violating any t.rms or conditions of a
permit authorizing Inland to discharge wastewat•r.
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—12-
(f) Did ISPCB ever institute any enforcement action against
Inland for any violation of any terms or condition, of
the Permit. If so, please indicates
(1) The date the enforcement action was instituted;
(2) The manner in which it was instituted;
( .3) The person and governmental entity that instituted
such an action;
(4) The courts, agency, or commission before which
such action was instituted; and
(5) The result/status of such action.
(g) Unless the answers to part (e) and/or (f) of this inter-
rogatory are an unqualified negative, indentify each such
communication with ISPCB.
(h) Identify each director, officer or employee with knowledge
of any information requested in parts (a) —(g) of this
interrogatory.
(i) Identify all documents which set forth, refer or relat.
to any information requested in parts (a)—(h) of this
interrogatory.
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—13—
INTERROGATORY 4
Identify and deecribe the physical configuration and
location of each an4 every discharge outfall, including but not
limited to internal monitoring point., at the Inland facility.
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—14-
INTERROGATORy 5
Does Defendant contend that the internaj. monitoring point
(1) are.nbt points far the discharge of pollutantiat th In1 id.
facility; and (2) are not subject to the monitorinl, tea ing,
and riporting requirements, and/or effluent limitations fthe
NPDES)ermit,..If any part of the answer is ye ., a) eiplaii
your position; (b) state each and every fact upon w ichyou
w .upport tn .s contention; and (c i identify any doci en
that sets forth, refer., or relates tóany 1nformation.
requested n parts (a) and (b).
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—15-.
INTERROGATORy 6
Does Defendant contend that on any of the dates listed in
Exhibit C of the Complaint it did not discharge a pollutant in
excess of the Permit limitation as stated in Exhibit C. For
each date identified state:
(a) The date of the analysis or measurement;
(b) The identity of each person who performed
the analysis or measurement;
Cc) A list of each characteristic or parameter
analyzed or measured;
(6) A summary of all results or the analysis or
measurement; and
(e) All persons or governmental entities that have
been provided with said information and the
dates upon which said information was provided.
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—1 6.
INTERROGATORy 7
Identify and explain the specific cause of each exceedance
ide’.tified in Exhibit C of the Complaint.
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—17—
INTERROGATORY 8
Explain whether the causes identified in Interrogatory No. 7
have been remedied in whole or in part. Indicatez
(a) The specific action taken with specification of
any equipment installed or used
(b) The dates of the specific action
Cc) The identity and function of each person who was
involved in the remedial action
Cd) The complete expense of the remedial action,
including operation and maintenanc.
Ce) The effectiveness of the remedial action.
(f) Identify any document in which the specific causes
of the exceedances are delineat.d.
(g) Identify all persons or governmental entities that
have been provided with the information contained
in Interrogatory 7 and the dates and manner in
which the information was provid.d.
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—18—
INTERROGATORy 9
Identify whether any discharge through any discharge
outfall contained more than 100 lbs per day of phenol during
the period from January 1, 1984 to January 1, 1986. For each
such discharge, identify:
(a) The date of the analysis or measurement
(b) The identity of each person who performed
the analysis or measurement
(a) A suiwnary of all results of the analysis or
measurement
(d) All persons or governmenta’ entities that
have been provided with said information
and the dates upon which said information was
provided.
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-19—
INTERROGATORy 10
Explain the specific cauee of each exceedance identified in
Interrogatory No. 8 and whether these causes have been remedied
in whole or in part.
For each exceedance indicate:
(a) The specific corrective action taken with
specifications of any equipment installed or
used
Cb) The dates of initiation and completion of the
specific corrective action
Cc) The identity and function of each person who
was involved in the remedial action
(d) The complete expense of the remedial action,
including operation and maintenance expenses
Ce) The effectiveness of the remedial action.
(f) Identify any document in which the causes of the
exceedanceg are delineated.
(g) Identify all persons or governmental entities that
have been provided with the information contained
in this Interrogatory and the dates and manner in
which the information was provided.
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—20-
INTERROGMORY 11
Does Defendant contend that any of the exceedances identi-
fied in Interrogatory No. 8 do not violate the Permit. If M yes,
(a) explain why the exceedances do not violate the Permit;
(b) state each and every fact upon which you rely to support
this contention; and (c) identify any document that sets forth,
refers, or relates to any information requested in parts (a)
and (b).
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INTERROGATORY 12
Did Inland ever request that the conditions of its Permit
be n odified by ISPCB or any other governments], units? If yes,
identifyz
(a) The date of the request(s)
(b) The manner the request(s) were communicated
(c) The conditions that Inland requested be changed
(d) Responses to the Request(s)
Ce) Documents that set forth, refer, or re1a te to any
information requested in parts (a)—(d).
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INTERROGATORy 13
(a) State the amount you expended, including capital and
operation and maintenance expenditures, for water pollution
control equipment at the Inland facility for each year
since January 1, 1984.
(b) For each expenditure identified in (a), state the related
items of equipment. -
(a) With regard to each item of water pollution control
equipment identified in your response to part (b),
and the total capital costs specified in your response to
part (a) above, state the amount of the costs eligible for
investment tax credits and the tax credit claimed (percent)
or that will be claimed.
(d) State the depreciable life assiged to each item of equipment
identified in your response to subpart (b) above (i.e.,
the minimum number of years over which the particular
pollution control equipment may be depreciated).
(.) Identify each of your officers, employees, agents or
contractors with knowledge of any information requested
in thi. interrogatory.
(f) Identify all documents which set forth, refer, or relate
to any information requested in parts (a)—(e) of this
interrogatory.
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-23—
INTERROGATORY 14
(a) Identify each person who has or had responsibility with
regard to any of the foll ing matters since January 1,
1984:
(1) Monitoring, analysis, and reporting of pollutant
- discharges from the Inland facility
(2) Compliance by the Inland facility with water
- pollution control laws, including the Clean Water
Act, 33 U.S.C. **137l(b) .! and all regula-
tions adopted pursuant thereto and with the NPDES
Permit.
(3) Training and supervision of employees working with
process or equipment that produce or control wat.r
pollution at the Inland facility
(4) Operation and maintenance of water pollution
control equipment at the Inland facility
(b) For each person identified in response to part (a) of this
interrogatory, provide said person(s) title, job descrip-
tion, and list of duties. Specify the time periods
associated with each job description and list of duties.
Cc) Identify each of your officers, employees, agents, or
contractors with knowledg. of any information requested in
parts (a) and (b) of this interrogatory. -
Cd) Identify all documents which set forth, refer, or relate
to any information requested in parts (a) — Ce) of this
interrogatory.
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—24—
INTERROGATORY 15
Identify each occasion, if any, when the analysis or
testing of a sample of the facility’s effluent was conducted:
(1) Elsewhere than at the laboratory at Inland’s
facility; or
(2) By a person other than an Inland eii p1oyee (i.e. a
contractor)
For each occasion identified in response to this interroga-
tor, state the following:
(a) the reason the sampling was conducted in that
mariner
(b) what was tested for
(a) the test methods used
Cd) whether the results indicated exceedancee of the
NPDES permit
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INTERROGATORy 16
Identify any inspections, including Performance Audit
Investigations (PAls), conducted at the Inland facility by any
governmental entity prior to the March 6, 7, 1984, PAl conducted
by U.S. EPA. For each such audit or inspection, state and
identify:
(a) The governmental entity
- (b) The date of the investigation
(c) Each person who participated in the investiga-
tion—including both governmental and Inland
personnel
(d) Any document indicating the results of th.
investigation, i.e., an audit report, or any
document relating or referring to the investiga-
tion
(.) Any communication between the governmental unit
and Inland regarding the investigation, including
the dates and manner of such communication
(f) Any violations identified including violations of
the Permit, 40 C.F.R. 136, or uStandard Methods
for Examination of Water and Wastewat.r.u
(g) Any corrective actions taken as a result of the
investigation, including:
1. Th. specific corrective action and the problem.
it was designed to solve
2. Specifications of any equipment installed or
used
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—26—
3. The dates of initiation and completion of the
specific correctiv, action
4. The identity and function of each person who
was involved in the implementation of the
remedial action
5. The complete expense of the remedial action,
including operation and maintenance
6. The effectiveness of the remedial action,
including whether violations identified at (f)
were remedied
7. The dates of any remedial action
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—27—
INTERROGAToRY 17
Doe. Defendant contend that its NPDES Permit does not
require Defendant to comply with 40 C.F.R. 136. If so, state
every fact upon which Defendant bases this contention.
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-28—
INTERROGATORY 18
Does Defendant contend that its NPDES Permit does not
require Defendant to comply with “Standard Methods for the
Examination of Water and Wastewater. If so, state every fact
upon which Defendant bases this contention.
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‘-29—
INTERROGATORY 19
For any of the NPDES permit violations alleged in paragraphs
20—29 and 33—40 of the Complaint, does Defendant contend that
it did not operate its laboratory as alleged. If the answer is
eyes as to any subpart of these paragraphs, state every fact
upon which Defendant bases this contention.
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—30—
INTERROGATORY 20
For each violation alleged in paragraphs 20—29 and 33—40
of the Complaint, state whether Defendant contends that its
procedure was not violative of Defendant’s NPDES Permit, 40
C.F.R. 136 and/or Standard Methods, If the answer is NyesN
as to any subpart, state for each such subparts
(a) Each and every fact upon which Defendant bases
— this contention
(b) Whether this procedure is still being used at the
Inland facility; if not, describe the procedure
used to replace the observed practice and the data
of the alternative procedure’s implementatjo
(a) Whether an alternative procedure that was implen-
ented after the March 6, 7, 1984 PA! is requir.d
for the Inland facility to be in compliance with
the Permit, 40 C.F.R. c136, Standard Methods, or
any other governmental regulations
Cd) The identity of all persons with knowledge of the
procedures referred to in paragraphs 20—29 and
33—40
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—31—
INTERROGATORY 21
State the bases of your position i T t paragraphs 18, 20. 22,
23, 24, 25, 27, 31, 32. and 34 of Defendant’s Answer that any of
Defendant’s deviations from the regulations regarding performing
tests and analyses contained in the Permit, 40 C.F.R. 136, or
the Standard Methods were (a) de ininimu. , (b) inadvertent,
Cc) not resultant in material harm to the environment, and/or
(d) promptly remedied by corrective action. Identify ny
document that set. forth, refers, or relates to any information
in this interrogatory.
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—32—
INTERROGATORY 22
Identify the date and manner in which Inland was informed
of any of the results of the investigation conducted on
February 7. 1985, at the Inland facility.
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—33—
INTERROGATORy 23
Identify any corrective actions taken as a result of or
after the February 7, 1985, investigation, includings
1. The specific corrective action and the problem
it was designed to solve
— 2. Specifications of any equipment installed or used
3. The dates of initiation and completion of the
specific corrective action
4. The identity and function of each person who was
involved in the implementation of the remedial
action
5. The complete expense of the remedial action,
including operation and maintenanc.
6. The effectivenes, of the remedial action.
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—34—
INTERROGATORy 24
(a) Identify the date and manner in which Inland was
informed of any of the results of the Co pljance
Sampling Inspection at In1and’ facility on
January 22—24, 1985.
(b) Identify any documents that refer or relate to such
Compliance Sampling Inspection.
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—35—
INTERROGATORY 25
State with particularity and in detail why you contend that
U.S. EPA’s results of an analysis of a Cyanide Sample from the
Inland facility, which was an effluent sample collected by U.S.
EPA as part of the anuary 22—24, 1985, Conçliance Sampling
Inspection, are not correct, and identify all doownents that
support, or are associated with, your contention.
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INTERROGATORY 26
State each and every fact upon which Defendant bases ita
contentions, in paragraphs 44 and 46 of its Answer, denying
that exceedances alleged in paragraphs 44 and 46 were in
violation of Defendant’s NPDES Permit.
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—37—
INTERROGATORY 27
State each and every fact upon which Defendant bases it.
:ontention in paragraph 43 of it. Answer denying that Defendant’s
test results were incorrect.
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—38—
INTERROGATORY 28
State each and every fact on which defendant baaea it.
five affirmative defenses.
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—39—
INTERROGATORY 29
(a) State Defendant’, rate of return on equity (the average
anticipated future value of the annual after tax income
divided by the total value of the common share holder
interest) for each year since 1980.
(b) Identify each of your officers, employees, agents or
contractors with knowledge of any information requested in
part (a) of this interrogatory.
(c) Identify all documents which set forth, refer or related
to any information requested in parts (a)—(b) of this
interrogatory.
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—40—
INTERROGATORY 30
(a) State the interest rate on your borrowed capital (long—term
debt) for each year since 1980 for each defendant.
(b) Identify each of your of ficers, employees, agents or
contractors with knowledge of any information requested in
part (a) of this interrogatory.
Cc) Identify all documents which set forth, refer or relate
to any information requested in parts (a)—(b) of this
interrogatory.
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—41—
INTERROGATORY 31
(a) Describe in detail the terms and conditions of any and all
long-term loans or debts owing by Defendant.
(b) For each long-term loan or debt described in response to
subpart (a) of this interrogatory, list;
(1) the dates said loans or debts were incurred;
(2) all persons or entities liable for said loans or debts;
(3) - all persons or entities to whom said loans or debts ari
payable;
(4) the dates said loans or debts are due;
(5) the exact amount of proceeds received by either of the
defendants from the creation said loans or debts;
(6) describe in detail th. current status of each loan or
debt;
(7) describe with specificity the relationship of each
expenditure listed in response to subpart (b)(7) of
this interrogatory, to the reduction of pollutants or
pollution control;
(8) describe in detail the status of all discussions with
the creditors identified in response to subpart (b)(3)
of this interrogatory regarding repayment schedules.
Cc) Identify each of your directors, officers or employees with
knowledge of any information requested in parts (a) and (b)
of this interrogatory.
Cd) Identify all documents which set forth, refer or relate
to any information requested in parts (a) —(c) of this
interrogatory.
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—42—
INTERROGATORy 32
(a) State whether Defendant has any insurance coverage,
including comprehensive liability coverage that is or may
be applicable to any claims asserted by the United States
in this action.
(b) Unless the answer to part (a) of this interrogatory is an
unqualified negative:
(1) Identify each policy that does or may provide
coverage for any liability that may arise out of
the facts alleged in the Complaint and identify
each insurer and state each policy ntmtber; and
(2) State the amount of insurance coverage under each
policy identified in your answer to subpart (b)(l)
above;
Cc) State whether any insurance company has ever performed an
environmental risk assessment or other study regarding your
compliance with water pollution control law., and identify
each such risk assessment or study and the person who
performed such assessment or study.
Cd) Identify each of your of ficeri, employees, agents or
contractors with knowledge of any information requested in
parts (a)—(c) of this interrogitory.
Ce) Identify all documents which set forth, refer or relat.
to any information requested in part. (s)—(d) of this
interrogatory. -
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—43—
INTERROGATORy 33
(a) Identify each person whom you intend to call a. a factual
witness at the trial of this case; state the subject matter
on which each witness will testify; end summarize the fact.
to which each witness is expected to testify.
(b) Identify each of your officer., employee., agents or
contractors with knowledge of any information requested in
part (a) of this interrogatory.
(c) Identify all document, which set forth, refer or relat, to
any information requested in parts (a) and Ct ,) of this
interrogatory.
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—44-
INTERROGM’ORy 34
(a) Identify all experts whom you may call to testify on your
behalf in this action. Include each such expert’s general
areas of expertise and areas of specialization, education,
and professional background and experience, and set forth
the following information for each experts
(1) The opinions or conclusions to which the expert is
- expected to testify
(2) Th. basis for each opinion or concluaion
(3) The identity of all document, that have been
written, in whole or in part, by or at th.
direction of the expert, in connection with this
litigation
(4) The identity of all documents which the expert has
reviewed in connection with this litigation, and
(5) The id.ntity of all documents on which such expert
rilies for the testimony he or she is expected to
offer in this action.
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—45—
REOUESTS FOR PRODUCTION OF DOCUMENTS
Please produce the following documents:
1. All documents described or identified in Defendant’s
answers to interrogatories, and for each identify the interrogatory
to which it corresponds.
2. All documents on which Defendant relied to respond to
these interrogatories.
3. All documents upon which Defendant intends to base it.
defense or upon which Defendant intends to rely or offer into
evidence at the trial of this matter.
4. The Articles of Incorporation and any amendments thereto
under which Inland is operating and Annual Reports submitted to
the Stat, of Indiana for F! 1984—86.
5. Copies of Federal, state, and local tax form, for F! 1984—86.
Respectfully submittsd,
H R E. SMITH, JR.
Associate Regional Counsel
SANDRA N. LEE
Assistant Regional Counsel
U.S. Environmental
Protection Agency
Region V
230 South Deaborn Street
Chicago, Illinois 60604
(312) 886—6841
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