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, Portland, Oregon 97219 Phone: (503) 768-6673 Fax: (503) 768-6671 www.nedc.org
July 17, 2012 Via Certified Mail, Return Receipt Requested Mr. Frank Foti President, CEO, Site Owner Vigor Industrial, LLC 5555 N. Channel Ave Portland, OR 97217 Re: Sixty-Day Notice of Intent to File Suit for Violations of the Clean Water Act, 1200-Z General Permit
Dear Mr. Foti: The Northwest Environmental Defense Center (“NEDC”) hereby provides notice, pursuant to Section 505 of the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (“CWA”), 33 U.S.C. § 1365, of its intent to initiate suit against Vigor Industrial, LLC (“Vigor”) to enforce the Clean Water Act. 33 U.S.C. §§ 1311, 1342. Vigor’s facility, located at 5555 North Channel Avenue, Portland, Oregon 97217 (the “Facility”), is covered under the Oregon Department of Environmental Quality (“DEQ”) issued National Pollutant Discharge Elimination System (“NPDES”) 1200-Z Permit (“Permit”). Vigor has violated and continues to violate the express terms of the Permit, which sets specific requirements that the Facility must follow to ensure the protection of Oregon’s waters. Unless Vigor takes the steps necessary to remedy its ongoing Permit violations, NEDC intends to file suit against Vigor in U.S. District Court immediately following the expiration of the required sixty-day notice period, seeking injunctive relief and civil penalties in the amount of $37,500.00 per day per violation, described below, and for any additional, similar violations that NEDC may discover subsequently. If Vigor has any information suggesting that one or more of the violations outlined in this notice did not occur or is stated incorrectly, please provide that information to NEDC immediately, specifying the violation in question. I. NEDC’s Commitment to Protecting the Willamette River
NEDC is an independent, non-profit organization working to protect the environment and natural resources of the Pacific Northwest. NEDC’s members and supporters live, recreate, and Page 1 of 11 Sixty-Day Notice Letter of Intent to File Suit
work throughout the Willamette River basin and watershed and the Columbia River watershed. Threats facing the Lower Willamette River Basin and the Columbia River Basin are severe by any measure. NEDC invests significant time and resources reducing pollutant loads from process wastewater and stormwater sources. When rain sends runoff across city streets, construction projects, and industrial facilities, the water picks up contaminants that are drained into waterways such as the Willamette River. These toxics accumulate in local fish, wildlife and birds. Simply put, stormwater pollution is a public health issue with particular impacts on residents that recreate on or near the Willamette River and the Columbia River. NEDC is committed to improving water, land, and air quality through various program areas including public education, volunteer water quality monitoring, advocacy for sound environmental protection laws, and permit enforcement. This Notice of Intent is part of NEDC’s ongoing efforts to improve the Willamette River for purposes including human health, recreation, and habitat quality. II. Vigor Is in Violation of and Has Continuously Violated the 1200-Z NPDES Permit. A. Permit Background
Vigor currently operates its facility pursuant to DEQ’s 1200-Z NPDES permit, which took effect on July 1, 2007. Vigor discharges stormwater into the Willamette River and Swan Island Lagoon via 51 separate outfalls. Section 301 of the CWA prohibits the discharge of pollutants except, inter alia, in accordance with the terms of a NPDES permit issued pursuant to section 402 of the Act. The 1200-Z NPDES Permit establishes specific requirements that Vigor, as a permittee, must follow to ensure the protection of Oregon’s waters. To begin with, Vigor must properly prepare, implement, and keep its Stormwater Pollution Control Plan (“SWPCP”) updated and current. Permit Sch. A.1(a), (f).1 Failure to implement any portion of an Action Plan is a permit violation. Permit Sch. A.1(e). There are a number of SWPCP requirements, including a site description, site controls that eliminate or minimize exposure of pollutants to stormwater, and record keeping and reporting procedures. Permit Sch. A.3. With limited exception, non-stormwater discharges, including wastewater mixed with stormwater, are prohibited except. Permit Sch. A.4. A SWPCP’s effectiveness is determined by comparing stormwater monitoring results with Permit benchmarks. The benchmarks are numeric concentration levels set for copper, lead, zinc, pH, total suspended solids (“TSS”), oil and grease, and E. coli. See Permit Sch. A.8. Visual monitoring for floating solids and oil and grease sheen provide an additional assurance that the SWPCP is effective. Id. The benchmarks provide a standard that determines whether a facility’s
Changes to the SWPCP must be clearly documented; if the permittee proposes to revise the SWPCP or if DEQ or BES requires revisions to it, then the revisions must be clearly described in an Action Plan. Permit Sch. A.2. Page 2 of 11 Sixty-Day Notice Letter of Intent to File Suit
SWPCP is effectively reducing or eliminating stormwater pollution. If a benchmark is exceeded, the permittee must respond by investigating the cause of the exceedance, reviewing the SWPCP, and determining what corrective actions must be taken to ensure future compliance. This response must be documented in an Action Plan and submitted within 30 days of receiving the test results. Permit Sch. A.9. Specifically, the purpose of an Action Plan is to determine: if the SWPCP is being followed; if there are alternative methods for implementing the existing site controls identified in the SWPCP; if benchmark exceedance(s) resulted from background or natural conditions not associated with industrial activities at the site; and if additional effective site controls are needed to address the parameters of concern. Permit Sch. A.9(b). The Action Plan must include the results of the review, the corrective action that will be implemented, and an implementation schedule for any actions not already underway. Permit Sch.A.9(c). Failure to implement any portion of an Action Plan is a permit violation. Permit Sch. A.2(c). Schedule B of the Permit sets out the monitoring requirements, including the number of samples that must be taken, frequency of sampling, parameters monitored, monitoring location, sampling procedures, and reporting requirements. Every stormwater outfall must be monitored unless the area draining there is not exposed to stormwater and industrial activity or the outfall’s discharge is substantially similar to that of another monitored outfall. Permit Sch. B.2(b). The permittee must comply with all provisions of the permit. Permit Sch. F.A.1. This includes properly maintaining and operating all facilities and systems of treatment and control intended to keep the permittee in compliance with the Permit. Permit Sch. F. B.1. All sampling must be representative of the monitored discharge and taken at specified locations unless otherwise approved by DEQ. Permit Sch. F.C.1. Finally, specific monitoring procedures must be followed. Permit Sch. F.C.3. B. Permit Violations
NEDC intends to file suit for all violations documented by the Portland Bureau of Environmental Services (“BES”) and/or DEQ during the last five years as well as any other violations discussed in the Notice Letter and discovered subsequently. This Notice of Intent includes, but is not limited to the following violations: 1. 2. 3. 4. 5. 6. 7. 8. Failure to properly prepare, implement, and update the SWPCP; Failure to submit Action Plans on time; Failure to submit adequate Action Plans; Non-stormwater discharges of pollutants; Failure to properly monitor; Failure to report on time; Failure to comply with all provisions of the Permit; and Failure to use representative monitoring.
As a result of these ongoing violations, Vigor is in violation of the CWA and subject to injunctive relief and civil penalties. 1. Failure to properly prepare and update the SWPCP
Vigor’s SWPCP has violated its Permit requirements continuously from 2008 through the Page 3 of 11 Sixty-Day Notice Letter of Intent to File Suit
present. 2008. In March of 2008, BES notified Vigor that it failed to meet all the requirements of Permit Schedule A.3. See BES Letter to Vigor (March 6, 2008). Despite many warnings from BES, Vigor failed to update its SWPCP by April of 2008. See BES Letter to Vigor (April 28, 2008). The site map, significant materials, BMPs, Spill Prevention Response, and employee training were not adequately addressed. See id. Vigor then openly refused to update its SWPCP. See Vigor Letter to BES (May 19, 2008). In response, BES issued a notice of noncompliance (“NON”) for Vigor’s failure to submit a revised SWPCP addressing Schedule A.3(b)(1) and A.3(b)(iii)(1), (4)-(6). BES NON Letter to Vigor (July, 8, 2008). Vigor rebuffed this warning too. See Vigor Letter to BES (July 23, 2008). BES again notified Vigor that it was “in noncompliance with the 1200-Z permit until revisions are completed.” BES Letter to Vigor (Oct. 8, 2008). When Vigor finally submitted a revised SWPCP on November 24, 2008, many months late, it was still inadequate. See Vigor Letter to BES (Mar. 24, 2009). 2009. A facility inspection on March 19, 2009 revealed numerous SWPCP deficiencies concerning Vigor’s operations, site controls, accuracy of the site map, and drainage verification. See BES Letter to Vigor (Mar. 24, 2009). Despite submitting an updated site map on March 23, 2009, the stormwater drainage was still incomplete and inaccurate. BES NON Letter to Vigor (May 14, 2009). Vigor’s SWPCP violations continued through the end of the year. See BES Letter to DEQ (June 18, 2009); See also DEQ Warning Letter With Opportunity to Correct (Sept. 30, 2009) (failure to include drainage patterns, drainage structures, and drainage discharge structures in its site map). At the end of the year, DEQ and BES concurred that the site map needed updating, a revised action plan was needed, and BMPs must be applied uniformly in all areas deemed representative of outfalls. See BES Meeting Notes (Dec. 22, 2009). 2010. Vigor’s revised SWPCP, sent on May 10, 2010 contained numerous defects that violated Permit Schedule A.3. See BES Letter to Vigor (July 14, 2010). The SWPCP’s description of site activities was inaccurate in at least eight ways and the site map required fifteen revisions. Id. Vigor also failed to implement its SWPCP and site controls by conducting improper containment, waste chemical and material disposal, and housekeeping activities. In addition, Vigor’s active work areas had no BMPs in place, necessary catch basin filters were absent, and the fueling area draining to outfall S needed to be covered. Id. 2011. In the beginning of 2011, BES issued Vigor a notice of noncompliance for Schedule A.3 violations because Vigor failed to evaluate the adequacy of its representative sample locations. BES NON Letter to Vigor (Jan. 10, 2011); see also Permit, Sch. A.3.b(vii). BES had alerted Vigor of this deficiency back in July of 2010. See id. A site inspection, conducted on April 12, 2011 revealed more violations, including: 1) unrepresentative samples in violation of Schedule B.2.b; 2) failure to implement the SWPCP and site controls; 3) failure to amend the SWPCP; and 4) failure to address tenants’ actions. See BES Letter to Vigor (Apr. 26, 2011). 2. Failure to properly implement the SWPCP
The Permit makes clear that in addition to adopting a SWPCP, Vigor must properly implement it. See Permit, Sch. A.3(c) (“The permit registrant must develop, implement and maintain [appropriate] controls . . . to eliminate or minimize the exposure of pollutants to stormwater or remove pollutants from stormwater before it discharges to surface waters.”). Required measures Page 4 of 11 Sixty-Day Notice Letter of Intent to File Suit
include stormwater BMPs, spill prevention and response procedures, a preventive maintenance program and an employee education program. Permit, Sch. A.3(c)(i)-(iv). Failure to implement any portion of the SWPCP or otherwise develop and implement effective BMPs constitutes a violation of the permit. Permit, Sch. C. Whereas site controls must “eliminate or minimize the exposure of pollutants to stormwater or to remove pollutants from stormwater before it discharges to surface waters,” stormwater monitoring records demonstrate Vigor’s violation of this requirement. Permit, Sch. A.3.c. Here, Vigor’s ongoing violation of this explicit Permit condition is evidenced by routine and significant benchmark exceedances. The data in Table 1 demonstrates regular exceedances of copper and zinc. Seventy-five (75) benchmark exceedances occurred during twenty (20) sampling events. A SWPCP is determined to be ineffective in “reducing pollutant concentrations in stormwater discharged from the site” when benchmarks are exceeded. Permit, Sch. A.8. Not only has Vigor repeatedly exceeded benchmarks, the copper in Vigor’s stormwater exceeded the benchmark by as much as four times the benchmark while Zinc exceeded it by almost six times. Vigor has thus failed develop, implement, and maintain the controls that are appropriate for the Facility in violation of Schedule A.3.c. 3. Action Plan Violations
Vigor’s failure to take the necessary corrective actions, in a timely manner, in response to these continuous benchmark exceedances has resulted in numerous additional permit violations. Under the Permit, a facility is required to submit Action Plans outlining how it intends to rectify benchmark exceedances in a timely manner. Yet, despite creating eighteen Action Plans, Vigor continues to exceed benchmarks at multiple outfall areas. Thus, Vigor has continuously violated Permit Schedule A.9 in both form and function. 2007. A benchmark exceedance on October 19, 2007 triggered Vigor’s duty to submit an adequate Action Plan within 30 days. It failed to do so. See Lian Jewel (Jewel”) email to Laura Johnson (“Johnson”) (Dec. 26, 2007); BES Letter to Vigor (Mar. 6, 2008). 2008. Vigor’s Action Plan, submitted on April 18, 2008, failed to address all outfalls with zinc exceedances and the corrective actions proposed had already been implemented before the sampled exceedance was taken. BES Letter to Vigor (April 28, 2008). An Action Plan must contain new actions (which may include alternative methods for implementing the existing site controls or corrective actions); it may not reiterate measures already in place. Vigor’s Action Plan, dated May 19, 2008, also failed to respond to exceedances of copper and zinc at sample points 1, 2, and 3 by merely promising to increase sweeping on two occasions, to investigate the copper and zinc sources, and contemplated adding catch basin filters in some locations without a commitment to do so. See SWPCP Addendum 4. With the exception of sweeping, Vigor provided no implementation schedule. See id. Schedule A.9 violations continued into the fall of 2008. Monitoring samples taken on December 29, 2008 demonstrated continued zinc and copper exceedances at sample points 1 and 2 as well as a pH exceedance. See SWPCP Addendum 6. In addition to Vigor submitting the Action Plan late, it also failed to institute a corrective action for pH and there was no implementation schedule for the proposed vault/sediment trap serving sample point 3. See BES Letter to Vigor (Mar. 9, 2009). Moreover, any adjustment of BMPs limited only to outfall Q (sample point 3) would Page 5 of 11 Sixty-Day Notice Letter of Intent to File Suit
make sample point 3 no longer a representative outfall. Concerning exceedances at sample point 1, no corrective action was proposed. In addition, the Action Plan did not contain the results of the SWPCP review. See SWPCP Addendum 6; BES Letter to Vigor (Mar. 9, 2009). The subsequent Action Plans were also woefully inadequate. 2009. Samples taken on April 13, 2009 showed high levels of copper at sample points 2 and 3 as well as zinc exceedances at sample points 1, 2, and 3. SWPCP Addendum 7. The Action Plan for Addendum 7 was to continue employee education and put up some informational signs. The former was not new while the efficacy of the latter is questionable. While a vague zinc investigation was provided, which does not qualify as a corrective action, there was no implementation schedule for an investigation of copper sources. This does not satisfy the requirements of Schedule A.9 because, while an investigation is an action, it does nothing to correct the pattern of benchmark exceedances. In addition, Vigor failed to provide an implementation schedule for, or specify the location of, proposed additional and replacement catch basin filters. See id. The subsequent Action Plan, SWPCP Addendum 8, was in response to similar benchmark exceedances at the same outfalls. There was no new corrective action from that of Addendum 7, which is a clear violation of the permit. Both Action Plans lacked adequate corrective actions and an implementation schedule. See BES Letter to Vigor (July 8, 2009). Notably, BES told Vigor that “The City would like to reiterate from the June 18, 2009 letter, ‘The City strongly encourages Vigor to present more stringent site controls and/or additional stormwater treatment in future Action Plans’.” Id. (original emphasis). Vigor refused to correct its Action Plan and disregarded BES’s warning on two subsequent occasions. See Vigor Letter to BES (July 16, 2009); BES Letter to Vigor (Aug. 12, 2009); Vigor Letter to BES (Aug. 27, 2009). Similar violations continued through the fall of 2009. See DEQ Warning Letter With Opportunity to Correct (Sept. 30, 2009). Vigor violated Schedule A.9(a) and A.9(c) by improperly responding to benchmark exceedances, and Schedule F.A.1 by failing to comply with the Permit conditions. Id. Vigor again rebuffed DEQ, denying all violations asserted, See Vigor Letter to DEQ (Oct. 26, 2009), leaving itself in noncompliance of Schedule A.9 through the end of they year, See BES Meeting Notes (Dec. 22, 2009). 2010. This consistent pattern of Action Plan violations carried on throughout 2010. In January of 2010, Vigor submitted an Action Plan for a zinc exceedance at sample point 3. See SWPCP Addendum 9. This Action Plan merely stated that an investigation, including examining rooftops as a possible source of zinc, would be done but no measures were specified to fix the problem. See id. Vigor did not even provide a “date for submittal of roof plan information, and timeline for implementation.” BES Meeting Notes (Jan. 1, 2010). On May 19, 2010 Vigor exceeded copper and zinc benchmarks at sample points 1, 2, and 3. SWPCP Addendum 11. Despite the number of zinc and copper exceedances and accompanying Action Plans submitted at that time, Vigor erroneously concluded that its SWPCP “[was] adequate and actively implemented in the areas of concern.” See id. If it were adequate, there would be no benchmark exceedances. In response to these ongoing exceedances, Vigor’s Action Plan was merely a discussion of possible sources without any commitment to a corrective action as required by the Permit. See id. On October 25, 2010, Vigor’s discharge at sample points 2 and 3 again exceeded copper and zinc benchmarks. Yet the Action Plan contained no clear commitment to implementing any corrective action beyond looking into a bioswale and/or filtration system with Page 6 of 11 Sixty-Day Notice Letter of Intent to File Suit
possible implementation by the end of 2011. See SWPCP Addendum 12. No interim measures were considered. See id. Stormwater samples taken on November 30, 2010 also exceeded copper and zinc at sample point 3. This Action Plan is no different than the previous Action Plan, meaning that no commitments to treatment or interim measures were proposed. Compare SWPCP Addendum 11 with SWPCP Addendum 13. In other words, this Action Plan lacked any corrective action. 2011. Two months later, a January 21, 2011 sample exceeded zinc at sample point 3. Again, Vigor’s Action Plan contained no corrective actions, only considerations. See SWPCP Addendum 14. Similarly, Vigor’s Action Plan for zinc exceedances at sample point 3 on April 14, 2011 suffered the same deficiency. See SWPCP Addendum 15. Samples taken on October 10, 2011 showed copper exceeded at sample points 2 and 7 and zinc exceeded at sample points 3 and 7. The Action Plan for these exceedances contained no corrective action. Instead, Vigor promised to investigate the accuracy of sample point 7 at the outfall itself rather than from a manhole cover. See SWPCP Addendum 16. BES then notified Vigor that this Action Plan was insufficient because “[i]nadequate corrective actions were taken to modify the existing SWPCP.” BES Letter to Vigor (Dec. 28, 2011). Samples taken on November 22, 2011 again exceeded benchmarks, this time for copper at sample point 7 and zinc at sample point 3. SWPCP Addendum 17. The proposed corrective action was to insert a catch basin filter to address sample point 7. Not only was this minimal and incomplete as it did not address exceedances at sample point 3, it was something BES had been suggesting to Vigor for some time. Moreover, catch basin filters must also be placed in all areas that sample point 7 is representative of, something Vigor failed to propose. Lastly, no new corrective action was proposed for the zinc problem at sample point 3. See id. 2012. As of this year, Vigor still has not complied with the Action Plan requirements. Vigor’s failure to fix the problems with its Action Plans for exceedances in October and November of 2011 continued to go unaddressed despite warnings from BES. See BES Letter to Vigor (Jan. 23, 2012). No specifics were provided to address zinc at sample point 3, catch basin filters were not added to all areas that sample point 7 is supposedly representative of, and no corrective actions for sample point 2 were proposed. Id.; See also BES Letter to Vigor (February 28, 2012). Rather than fixing the problem, Vigor’s discharge actually became more polluted, as shown by samples taken on February 14, 2012. Copper exceeded benchmarks at sample point 7 while zinc exceeded benchmarks at sample points 1, 3, and 7. SWPCP Addendum 18. Even after seventeen Action Plans, Vigor’s eighteenth Action Plan also failed to comply with the Permit. The corrective action for zinc at sample point 1 was merely to “explore” relocating vehicles parked in the area. For zinc at sample point 3, Vigor again reiterated that it was looking into installing a bioswale and discussed interim measures. Yet it was unclear whether the interim measures were new corrective actions or merely pre-existing site controls. There was no corrective action proposed for sample point 7 except to remove a filter, which Vigor curiously believed had caused an increase in pollutant concentrations. Again, Vigor promised an investigation without a commitment to a corrective action. Not surprisingly, like many of Vigor’s past Action Plans, BES found this one deficient because Vigor failed to both propose additional measure for exceedances at sample point 7 and provide an implementation schedule. See BES Letter to Vigor (Apr. 24, 2012). 4. Violation of Revised SWPCP and Action Plan Submission Deadlines
Vigor repeatedly submitted Action Plans and SWPCP revisions late. Action Plans were submitted late on multiple occasions in violation of Permit Schedule A.9(a). See, e.g., Jewell email to Page 7 of 11 Sixty-Day Notice Letter of Intent to File Suit
Johnson (Dec. 26, 2007) (over 30 days late); SWPCP Addendum 4 (date of receipt of sampling receipts not provided); BES letter to Vigor (Sept. 17, 2008) (Action Plan for December 19, 2007 benchmark exceedance submitted in April 18, 2008); BES Letter to Vigor (Mar. 9, 2009) (Action Plan submitted late). Revisions to its SWPCP were also submitted late at least once in violation of Permit Schedule A.2(c). Vigor submitted a revised SWPCP on November 24, 2008 that was supposed to be submitted by May 15, 2008, over six months late. See BES Letter to Vigor (Oct. 8, 2008); Vigor Letter to BES (Nov. 24, 2008). 5. Monitoring Violations
Vigor’s permit violations also include the failure to properly monitor. First, Vigor improperly monitored for pH in violation of Schedule F, Section C(3) and in February of 2008, Vigor failed to visually monitor even though it rained that month. BES Letter to Vigor (Mar. 6, 2008). Vigor is also in violation of Schedule B.2(b) by failing to either sample at every outfall or use representative sampling points. For instance, in March of 2009, Vigor proposed changes to BMPs affecting sample point 3 without implementing those changes in areas that sample point 3 was supposed to be representative of. See SWPCP Addendum 6; BES Letter to Vigor (Mar. 9, 2009). Since corrective actions are not implemented in all areas that sample points are representative of, Vigor’s sampling plan is not representative. See BES Letter to Vigor (July 8, 2009). This issue repeatedly concerned BES. “The justification for selection of sample points as representative does not meet the intent of the permit. Additional sample points or justification of current sample points is required.” BES Meeting Notes (Dec. 12, 2009). DEQ and BES have concurred that BMPs must be applied uniformly in all areas deemed representative of outfalls. See BES Meeting Notes (Dec. 22, 2009). BES issued Vigor a notice of noncompliance of Schedule A.3 because an evaluation of the adequacy of representative sample locations had not been performed. BES NON Letter to Vigor (Jan. 10, 2011). BES had also alerted Vigor of this deficiency in July of 2010. See id. A site inspection, conducted on April 12, 2011 showed that sampling points remained unrepresentative. See BES Letter to Vigor (Apr. 26, 2011). 5. Non-Stormwater Discharges
Non-stormwater discharges are prohibited under the Permit. Permit Sch. A.4. According to BES “table 2.1.6 (p. 2-15) [of the SWPCP] describes the discharge of container pressure system test water discharge to the street to drainage area "Q" from the CUB building. This type of process water discharge is not authorized under the permit and must be collected and diverted to the BWTP.” BES Letter to Vigor (July 14, 2010). D. Discharge of Pollutants Without a Clean Water Act Permit.
Section 301(a) of the CWA prohibits the “discharge of any pollutant” except as in conformance with several other sections of the Act, including section 402. 33 U.S.C. § 1311(a). “Pollutant” is defined as “dredged spoil, solid waste, incinerator residue . . . chemical wastes . . . wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste.” 40 C.F.R. § 122.2.
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Upon information and belief, Vigor has discharged and continues to discharge process wastewater without a NPDES permit. “Process wastewater” is defined as “[a]ny water which, during manufacturing or processing, comes into direct contact with, or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product.” 40 C.F.R. § 122.22. The discharge of process wastewater is not authorized by Vigor’s 1200-Z Permit. According to Vigor’s most recent SWPCP, dated April 2012:
Most of the industrial activities at the Facility are related to ship repair or servicing. Pollutant sources within the shipyard are not all from discrete locations due to the mobile nature of the many activities conducted here. Sandblasting, painting, and liquid waste transfer equipment is stationed according to project needs, whether at berths, dry docks, piers, or “laydown” areas throughout the Facility. Facility space, both covered and exposed, is leased to tenants.
SWPCP, at 2-1 (April 2012). Later in the SWPCP, Vigor also states that:
Activities at the Facility focus on ship building, repair and related industrial fabrication. The Facility has three operational dry docks, a number of berths for vessels undergoing maintenance and repair work, and a buildway for assembling barges and vessels. Although some of these activities take place within buildings at the Facility, as in the case of barge building and metals fabrication inside Building 4, much of the work takes place outside, either pier side or at one of several laydown areas. Due to the nature of ship repair work, many activities listed can occur simultaneously at several locations throughout the Facility, particularly those activities conducted dockside.
SWPCP, at 2-7 – 2-8 (April 2012) (emphasis added). When it rains, stormwater comes into contact with the materials associated with the work that takes place outside, whether pier side, dockside, or in laydown areas. When rainwater comes into contact with materials that are being used in or generated by industrial activities at the Facility it becomes process wastewater, not “industrial stormwater.” Discharges of this process wastewater is not authorized by Vigor’s 1200-Z Permit. Therefore, Vigor has and continues to violate the CWA each day it discharges process wastewater, via rain and stormwater, to the Willamette River and Swan Island Lagoon. Table 2 contains precipitation data for each day it rained in Portland, Oregon from July 17, 2007 to June 24, 2012. NEDC alleges that Vigor has discharged and continues to discharge process wastewater on each date of operation in which there was more than a trace amount of precipitation. In sum, Vigor has violated and continues to violate the CWA every day it discharges pollutants and process wastewater into the Willamette River and Swan Island Lagoon without a permit. III. Additional Concerns
Entering the current year, Vigor’s SWPCP remained inadequate. As required by the newly issued 1200-Z permit (effective July 1, 2012), Vigor was required to submit an updated SWPCP and a Tier II Corrective Action for its 4th year geometric mean exceedances. “[BES’s] calculations show that there is an exceedance of the geomean for copper at sample point #2 and zinc at sample point #3.” Johnson email to Jewell on Nov. 17, 2011. The corrective action proposed is a bioswale that Page 9 of 11 Sixty-Day Notice Letter of Intent to File Suit
will eventually treat water from the southern portion of the facility, which includes the areas associated with sample points 2 and 3. The new SWPCP contemplates treatment in the rest of the facility, such as those areas associated with sample point 1 and 7, but no commitment was made. Given the inadequate Action Plans that Vigor continues to submit regarding areas associated with sample point 1 and 7, discussed in detail above, Vigor’s violations remain ongoing. The proposed bioswale itself raises a number of concerns for NEDC. Swan Island is only 12 feet on average above the surface water level of the Willamette River. The bioswale will infiltrate into the groundwater as the method of treatment, with occasional overflow into the Willamette during large storm events. The proposed plan is very vague on the likelihood that this will bring pollutant concentrations below benchmark levels. It poses the risk of leaching contaminated soil pollution into the Willamette River, discharging polluted stormwater directly to the Willamette River via a ground/surface water hydrological connection, or discharging directly to surface water in overflow events. Any and all of these possibilities raise significant concerns for NEDC’s members. IV. Penalties and Injunctive Relief
NEDC has evidence that Vigor has previously violated and continues to violate its Permit, SWPCP, and the CWA at the Facility. See Gwaltney of Smithfield v. Chesapeake Bay Foundation, 494 U.S. 49, 57 (1987). Section 309 of the CWA, 33 U.S.C. § 1319(d), adjusted by 40 C.F.R. § 19.4, provides for penalties of up to $37,500.00 per day per violation. NEDC anticipates filing suit 60 days from the date of this notice in Oregon Federal District Court, requesting penalties and injunctive relief, if Vigor has not yet taken the appropriate remedial action to halt these egregious violations of the Permit and limit the discharge of these harmful pollutants into Oregon’s waters.
PERSONS GIVING NOTICE The full name, address, and telephone number of the party providing this notice is: Northwest Environmental Defense Center 10015 SW Terwilliger Blvd. Portland, OR 97219 (503) 768-6673 The attorney representing NEDC in this notice is: Marcel Gesmundo Attorney at Law O’Donnell Gesmundo, P.C. 310 SW 4th Ave., Suite 425 Portland, OR 97204 (503) 567-2377 (tel) (503) 427-9727 (fax)
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During the sixty-day notice period, NEDC will be available to discuss effective remedies and actions that Vigor may take to assure compliance with the CWA in the future. If you wish to discuss any aspect of this notice or to discuss settlement of this matter prior to commencement of suit, please contact us. Sincerely, Mark Riskedahl
COPIES TO: PG&E Registry, Inc. Registered Agent of Vigor Industrial LLC 222 SW Columbia St. Ste 1400 Portland, OR 97201 Dick Pedersen, Director Oregon Department of Environmental Quality 811 SW 6th Ave. Portland, OR 97204 Lisa Jackson, Administrator U.S. Environmental Protection Agency 401 M Street SW Washington, D.C. 20460 Dennis McLerran U.S. EPA Region 10 Regional Administrator’s Office, RA-140 1200 Sixth Avenue Suite 900 Seattle, WA 98101 Eric Holder Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
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