Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 1 of 26

Brian Knutsen, OSB # 112266

Emma Bruden, OSB # 163525
KAMPMEIER & KNUTSEN PLLC
221 S.E. 11th Avenue, Suite 217
Portland, Oregon 97214
Telephone: (503) 841-6515 (Knutsen)
(503) 719-5641 (Bruden)
Email: [email protected]
[email protected]

Jonah Sandford, OSB # 154711

NORTHWEST ENVIRONMENTAL DEFENSE CENTER
10015 SW Terwilliger Blvd.
Portland, Oregon 97219
Telephone: (503) 768-6726
Email: [email protected]

Attorneys for Plaintiff Northwest Environmental Defense Center

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

NORTHWEST ENVIRONMENTAL
DEFENSE CENTER, an Oregon non-profit Case No. 3:20-cv-00706
corporation,

Plaintiff, COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF AND
v. CIVIL PENALTIES

KINDER MORGAN BULK TERMINALS, (Pursuant to Clean Water Act,

LLC, a foreign corporation, 33 U.S.C. § 1365(a)(1))

Defendant.
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 2 of 26

I. INTRODUCTION.

1. This action is a citizen suit alleging violations of the Clean Water Act (“CWA” or

“Act”), as amended, 33 U.S.C. §§ 1251 et seq. Defendant Kinder Morgan Bulk Terminals, LLC

(“Kinder Morgan” or “Defendant”) leases and operates an industrial facility—a bulk materials

storage and transfer site—on the east bank of the Willamette River in Portland, Oregon. Kinder

Morgan has a National Pollutant Discharge Elimination System (“NPDES”) permit that author-

izes discharges of pollutants and stormwater associated with industrial activity from Defendant’s

facility to waters of the United States, provided Kinder Morgan and the discharges comply with

the terms and conditions of the permit. Plaintiff Northwest Environmental Defense Center

(“NEDC”) alleges Defendant is regularly violating the terms and conditions of its NPDES per-

mit. NEDC seeks declaratory and injunctive relief, the imposition of civil penalties, an award of

costs, attorneys’ fees, and expert witness fees, and other relief for Defendant’s repeated and on-

going violations of its NPDES permit and the Clean Water Act.

II. JURISDICTION AND VENUE.

2. This Court has jurisdiction pursuant to 33 U.S.C. § 1365 (CWA citizen suit provi-

sion) and 28 U.S.C. § 1331 (federal question). Kinder Morgan is in violation of an “effluent

standard or limitation” as defined by Section 505 of the Act, 33 U.S.C. § 1365. The relief re-

quested herein is proper under 28 U.S.C. §§ 2201 and 2202, and 33 U.S.C. §§ 1319(d) and 1365.

3. NEDC has satisfied the jurisdictional requirements for bringing this suit. In ac-

cordance with Section 505(b)(1)(A) of the Act, 33 U.S.C. § 1365(b)(1)(A), by certified letter

dated and postmarked February 12, 2020, NEDC notified Kinder Morgan and its registered agent

of Defendant’s alleged violations of its NPDES permit and the CWA and of NEDC’s intent to

COMPLAINT – 2
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 3 of 26

sue for those violations (“Notice Letter”). NEDC also notified the Administrator of the U.S. En-

vironmental Protection Agency (“EPA”), the Administrator of EPA Region 10, and the Director

of the Oregon Department of Environmental Quality (“ODEQ”) of NEDC’s intent to sue De-

fendant by mailing a copy of the Notice Letter to those officials on February 12, 2020. A copy of

the Notice Letter is attached to this Complaint as Exhibit 1 and the allegations therein are hereby

incorporated by reference.

4. More than sixty days have passed since NEDC mailed the Notice Letter and the

violations complained of are continuing or reasonably likely to continue to occur. Neither EPA

nor ODEQ has commenced any action constituting diligent prosecution to redress the violations

alleged in the Notice Letter. Defendant is in ongoing violation of the Clean Water Act.

5. Venue is appropriate in this District under Section 505(c)(1) of the Act, 33 U.S.C.

§ 1365(c)(1), because the source of the violations complained of is located in this District, in

Multnomah County, Oregon.

6. A copy of this Complaint will be served on the Attorney General of the United

States, the Administrator of the EPA, and the Administrator of EPA Region 10, as required by 33

U.S.C. § 1365(c)(3) and 40 C.F.R. § 135.4.

III. PARTIES.

7. Plaintiff Northwest Environmental Defense Center is a membership organization

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

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

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

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

wildlife habitat across the Pacific Northwest.

COMPLAINT – 3
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 4 of 26

8. The mission of NEDC is to protect and conserve the environment and natural re-

sources of the Pacific Northwest. NEDC and its members work to conserve and protect water re-

sources and aquatic species of the Pacific Northwest. NEDC and its members have a particular

interest in, and derive aesthetic, recreational, and other benefits from, Oregon’s rivers, streams,

lakes, and bays, including the Willamette River and the Columbia River, as well as the aquatic

species that use and rely on those waters. NEDC’s members use and enjoy the Willamette River

and the Columbia River, including waters and adjacent lands downstream from Defendant’s dis-

charges of pollutants, for recreational and other activities, including boating, fishing, nature

watching, hiking, biking, aesthetic enjoyment, and other activities. Additionally, many members

of NEDC live or work near the Willamette River or the Columbia River or otherwise have an in-

terest in the Willamette and Columbia rivers and the aquatic species that inhabit or use those wa-

ters. NEDC and its members intend to continue all of these activities in the future.

9. NEDC has standing to bring this lawsuit. NEDC and its members are “citizens” as

defined by Section 505(g) of the Act, 33 U.S.C. § 1365(g). NEDC has at least one member who

is injured by Defendant’s discharges of pollutants and polluted stormwater and its failure to com-

ply with its NPDES permit and the CWA. Recreational, economic, aesthetic, conservation,

health, and other interests of NEDC and its members have been, are being, and will be adversely

affected by Defendant’s violations of the CWA and unauthorized discharges of pollutants and/or

industrial stormwater to the Willamette River. NEDC’s and its members’ interests in the

Willamette River and waters downstream of it are diminished by their polluted state, by Defend-

ant’s illegal discharges of pollutants and industrial stormwater, and by Defendant’s other viola-

tions of the CWA. These injuries are fairly traceable to the conduct challenged herein. The relief

sought in this lawsuit can redress the injuries to NEDC and NEDC’s members’ interests.

COMPLAINT – 4
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 5 of 26

10. Defendant Kinder Morgan is a corporation organized and existing under the laws

of the State of Louisiana and is authorized to conduct business in Oregon. Defendant leases and

operates an industrial facility at or near 11040 North Lombard Street, Terminal 4, Portland, Ore-

gon 97203 (hereinafter “the Facility”). Defendant’s Facility is on land adjacent to the Willamette

River. Defendant’s Facility discharges pollutants and stormwater associated with industrial activ-

ity via point sources to the Willamette River.

IV. LEGAL BACKGROUND.

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

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

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

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

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

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

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

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

fined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, con-

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

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

§ 1362(14).

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

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

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

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

COMPLAINT – 5
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 6 of 26

16. Although neither the Act nor its implementing regulations define the term “addi-

tion,” courts have found that “addition” means the introduction of a pollutant into navigable wa-

ters from any place outside the particular water body. See, e.g., Catskill Mountains Chapter of

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

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

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

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

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

political subdivision of a State, or any interstate body.” Id. § 1362(5).

18. The Act regulates and requires an NPDES permit for stormwater discharges “as-

sociated with industrial activity.” 33 U.S.C. § 1342(p)(2)(B), (p)(3)(A). EPA regulations define

the term “stormwater discharge associated with industrial activity” in part to mean “the discharge

from any conveyance that is used for collecting and conveying storm water and that is directly

related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40

C.F.R. § 122.26(b)(14).

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

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

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

5. Section 402(a) of the Act empowers EPA or an authorized state to issue NPDES permits au-

thorizing discharges of pollutants or stormwater associated with industrial activity. 33 U.S.C. §

1342(a). EPA may delegate administration of the NPDES permit program to states with regula-

tory programs meeting applicable criteria. Id. § 1342(b); 40 C.F.R. Part 123.

COMPLAINT – 6
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 7 of 26

20. Compliance with the terms and conditions of an NPDES permit is deemed com-

pliance with the general discharge prohibition in Section 301(a) of the Act. 33 U.S.C. § 1342(k).

Any permit noncompliance is grounds for a citizen enforcement action. Id. § 1365(a)(1), (f)(7).

V. FACTS.

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

21. The State of Oregon implements a federally approved NPDES Permit program

administered by ODEQ. See Oregon Administrative Rules (“OAR”) Ch. 340-045. ODEQ issues

general and individual NPDES permits authorizing discharges of pollutants in the State of Ore-

gon. A person seeking coverage under one of ODEQ’s general permits must submit certain ap-

plication materials to ODEQ, which then assigns NPDES permit coverage to the discharger if ap-

propriate.

22. ODEQ periodically issues a General NPDES Stormwater Discharge Permit Num-

ber 1200-Z (“1200-Z Permit”) authorizing discharges of stormwater associated with industrial

activity in Oregon. For facilities that obtain coverage under it, the 1200-Z Permit authorizes dis-

charges of stormwater associated with industrial activity to waters of the United States, provided

the permittee and discharges are in compliance with the terms and conditions of the permit.

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

1200-Z Permit requires permittees to, among things, develop and implement a Stormwater Pollu-

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

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

prehensive stormwater management practices over time to protect water quality.

24. ODEQ issued one iteration of the 1200-Z Permit on October 1, 2011, with an ef-

fective date of July 1, 2012 (hereinafter “2012 Permit”). For facilities granted coverage under it,

COMPLAINT – 7
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 8 of 26

the 2012 Permit conditionally authorized stormwater discharges associated with industrial activ-

ity from July 1, 2012 to June 30, 2017. The specific terms and conditions of the 2012 Permit at

issue in this case are described below and in the Notice Letter. See Ex. 1.

25. ODEQ issued the most recent iteration of the 1200-Z Permit on August 1, 2017

(hereinafter “2017 Permit”). This permit was subsequently reissued upon reconsideration by let-

ter dated October 23, 2018. For facilities granted coverage under it, the 2017 Permit condition-

ally authorized stormwater discharges associated with industrial activity, as well as some non-

stormwater discharges of pollutants, from August 1, 2017 to July 31, 2022. The specific terms

and conditions of the 2017 Permit at issue in this case are described in detail below and in the

Notice Letter. See Ex. 1.

26. Defendant’s Facility discharges pollutants and stormwater associated with indus-

trial activity via discernible, confined, and discrete conveyances to the Willamette River.

27. ODEQ authorized Kinder Morgan to discharge stormwater associated with indus-

trial activity from its Facility from July 1, 2012 to June 30, 2017 by issuing Kinder Morgan cov-

erage under the 2012 Permit. ODEQ assigned Defendant file and permit number 100025. Addi-

tionally, ODEQ authorized Kinder Morgan to discharge stormwater associated with industrial

activity, as well as some non-stormwater discharges of pollutants, from its Facility from August

1, 2017 to July 31, 2022 by issuing Kinder Morgan coverage under the 2017 Permit under the

same file number.

28. Kinder Morgan’s 2012 Permit and 2017 Permit (together “the Permits”) require

Kinder Morgan to monitor stormwater discharges from the Facility. The stormwater monitoring

data described in Tables 1, 2, and 3 that are attached to the Notice Letter as Appendix A accu-

rately reflect stormwater monitoring results that Kinder Morgan submitted to ODEQ.

COMPLAINT – 8
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 9 of 26

29. Kinder Morgan’s Permits prohibit any direct or indirect discharge to waters of the

state that is not in compliance with the terms and conditions of the Permits. Kinder Morgan’s

Permits also clearly state: “Any permit noncompliance constitutes a violation of . . . the Clean

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

B. Kinder Morgan Has Violated and Is Violating Its 2012 and 2017 Permits.

30. Kinder Morgan is discharging pollutants and stormwater associated with indus-

trial activity from its Facility to the Willamette River and Columbia River in violation of the

terms and conditions in the 2017 Permit. Kinder Morgan also violated similar terms and condi-

tions in the 2012 Permit. Kinder Morgan’s violations of the Permits are set forth in Section II of

the Notice Letter and are hereby incorporated into this Complaint by reference. Kinder Morgan’s

violations of the Permits constitute violations of an “effluent standard or limitation” under the

CWA. 33 U.S.C. § 1365(a), (f)(7).

1. Kinder Morgan Violated Its Permits by Failing to Comply with the Permits’
Narrative, Technology-Based Effluent Limitations and the Control Measures
Required to Meet Those Effluent Limitations.

31. Schedules A.1 of the Permits require Kinder Morgan to implement the listed nar-

rative, technology-based effluent limits—a variety of best management practices listed in the

Permits—to reduce pollutants in stormwater discharged from the Facility. Additionally, Schedule

A.3.a of the 2017 Permit requires Kinder Morgan “to select, design, install, implement and main-

tain control measures . . . to meet the narrative and numeric technology based effluent limits in

Schedule A.1, A.2 and Schedule E of this permit and [to] describe these measures in the

SWPCP.” Schedule A.3.b of the 2017 Permit requires Kinder Morgan to “reduce or eliminate

pollutants to the extent achievable using control measures that are technologically available and

economically practicable and achievable in light of best industry practice.” Schedules A.1, A.3.a,

COMPLAINT – 9
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 10 of 26

and A.3.b in the 2012 Permit imposed the same or substantially similar obligations on Kinder

Morgan.

32. Kinder Morgan violated and continues to violate Schedules A.1, A.3.a, and A.3.b

of the Permits by failing to meet the narrative technology-based effluent limits in Schedule A.1

of the Permits; by failing to select, design, install, implement, and maintain control measures to

ensure compliance with the technology-based effluent limits in Schedules A.1 and Schedules E

of the Permits; and by failing to reduce or eliminate pollutants to the extent achievable using

control measures that are technologically available, economically practicable, and achievable in

light of best industry practice.

33. Several specific instances of Kinder Morgan’s violations of Schedules A.1, A.3.a,

and A.3.b of the Permits have been documented by Portland Bureau of Environmental Services

(“BES”) staff during Facility inspections. Kinder Morgan violated Schedules A.1, A.3.a, and

A.3.b of the 2017 Permit on January 11, 2019 by allowing debris accumulation near catch basin

L-18 at the Facility. Kinder Morgan violated Schedules A.1, A.3.a, and A.3.b of the 2017 Permit

on January 11, 2019 by failing to implement adequate site controls at the Facility to stabilize

soils in exposed areas where industrial activity has taken place in the past. Kinder Morgan vio-

lated Schedules A.1, A.3.a, and A.3.b of the 2017 Permit on January 22, 2020 because filters in

some catch basins at the Facility were missing or damaged. These and other documented viola-

tions are described in Section II.A.1 of the Notice Letter and are incorporated herein by this ref-

erence. 

34. Kinder Morgan’s violations of Schedules A.1, A.3.a, and A.3.b of the Permits are

also demonstrated by the fact that Defendant’s stormwater discharges regularly exceed the Per-

COMPLAINT – 10
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 11 of 26

mits’ numeric benchmarks for several pollutants. Schedules A.9 of the Permits explain that pol-

lutant benchmarks in the Permits “are designed to assist the permit registrant in determining

whether its site controls are effectively reducing pollutant concentrations in stormwater dis-

charged from the site.” Schedules A.9 and B.1.a of the 2017 Permit then require Kinder Morgan

to monitor stormwater discharges from the Facility to determine whether the discharges exceed

any of the following statewide benchmarks: total copper, 0.020 mg/L; total lead, 0.040 mg/L; to-

tal zinc, 0.12 mg/L; pH, 5.5 – 9.0 S.U.; total suspended solids, 30 mg/L; and total oil and grease,

10 mg/L. Schedules A.9 and B.1.a of the 2012 Permit imposed the same or substantially similar

obligations except that the benchmark for total suspended solids in the 2012 Permit was 100

mg/L. Additionally, Schedules E.Q.4 and B.1.a of the Permits require Kinder Morgan to monitor

stormwater discharges from the Facility to determine whether the discharges exceed any of the

following sector-specific benchmarks: Total Aluminum, 0.75 mg/L; and Total Iron, 1.0 mg/L.

And Schedule B.1.b of the 2017 Permit and ODEQ’s permit assignment letters to Kinder Morgan

require Kinder Morgan to monitor stormwater discharges from the Facility to determine whether

the discharges exceed, among others, any of the following impairment pollutant benchmarks:

Dissolved Copper, 0.012 mg/L; Total Iron, 1.0 mg/L; Benzo(a)anthracene, 0.001 mg/L;

Benzo(a)pyrene, 0.001 mg/L; Benzo(b)fluoranthene 3,4, 0.001 mg/L; Benzo(k)fluoranthene,

0.001 mg/L; Chrysene, 0.001 mg/L; Dibenz(a,h)anthracene, 0.001 mg/L; and Indeno(1,2,3-

cd)pyrene, 0.001 mg/L. Schedule B.1.b of the 2012 Permit and ODEQ’s permit assignment let-

ters imposed the same or substantially similar obligations except that they did not require Kinder

Morgan to monitor for dissolved copper.

35. As indicated in Tables 1, 2, and 3 that are attached to the Notice Letter as Appen-

dix A—where sample results in bold text indicate that a sample exceeded a pollutant benchmark

COMPLAINT – 11
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 12 of 26

or reference concentration—stormwater discharges from the Facility have repeatedly exceeded

the statewide, sector-specific, and impairment pollutant benchmarks in the Permits and the Facil-

ity’s permit assignment letters. The history and pattern of stormwater sample results exceeding a

statewide benchmark, sector-specific benchmark, or reference concentration for an impairment

pollutant for the Facility demonstrate that Kinder Morgan has regularly failed to comply with the

narrative technology-based effluent limits in Schedules A.1 and E of the Permits, and failed to

select, design, install, implement, and maintain control measures necessary to meet those limits,

in violation of Schedules A.3.a and A.3.b in the Permits. Additionally, this history and pattern of

pollutant benchmark exceedances demonstrate that Kinder Morgan’s Facility’s site controls are

not effectively eliminating or minimizing pollutants in stormwater discharged from the Facility,

and are not reducing or eliminating pollutants to the extent achievable, in violation of Schedules

A.1, E, A.3.a, and A.3.b in the Permits. These permit requirements and Defendant’s violations

thereof are described in Section II.A.2 of the Notice Letter and are incorporated herein by refer-

ence. These violations have occurred each and every day since March 1, 2015, and are ongoing.

36. Kinder Morgan also violated and continues to violate Schedules A.1, A.3.a, and

A.3.b in the Permits as they relate to Outfall 003 and Outfall 004 at the Facility. Between March

1, 2015 and late 2018, Kinder Morgan did not know about or acknowledge discharges to the

Willamette River from Outfalls 003 and 004, and so Kinder Morgan was not making any attempt

to comply with Schedules A.1, E, A.3.a, or A.3.b in the Permits regarding those outfalls. Recent

benchmark exceedances for Outfall 3, which are documented in Tables 1-3 that are attached to

the Notice Letter as Appendix A, demonstrate that even after acknowledging discharges from

Outfall 003 and 004 in 2018, Kinder Morgan continued to violate Schedules A.1, E, A.3.a and

A.3.b in the Permits for those Outfalls. These permit requirements and Defendant’s violations

COMPLAINT – 12
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 13 of 26

thereof are described in Section II.A.3 of the Notice Letter and are incorporated herein by refer-

ence. These violations have occurred each and every day since March 1, 2015 and are ongoing.

2. Kinder Morgan Violated Its Permits by Failing to Develop and Implement a

SWPCP that Complies with all the Requirements of the Permits.

37. Schedules A.3.a of the Permits require Kinder Morgan to describe its pollutant

control measures, maintenance schedules, and the frequency of housekeeping measures in its

SWPCP. Schedule A.6.c of the 2017 Permit requires Kinder Morgan to include in its SWPCP

each narrative technology-based effluent limit to eliminate or reduce the potential to contaminate

stormwater and prevent any violation of instream water quality standards. Schedules A.7 of the

Permits set forth the requirements for SWPCPs, including in Schedule A.7.b.vi of the 2017 Per-

mit and in Schedule A.7.b.v of the 2012 Permit the requirement that SWPCPs include a descrip-

tion of control measures installed and implemented to meet the technology and water quality

based requirements in Schedules A.1–A.5 and any applicable sector-specific requirements in

Schedule E. Schedule A.6.c of the 2012 Permit and Schedule A.6.d of the 2017 Permit then re-

quire Kinder Morgan to implement the SWPCP and any revisions to it.

38. Kinder Morgan violated and continues to violate these Permit conditions by fail-

ing to maintain and implement an adequate SWPCP at the Facility. The extensive benchmark ex-

ceedances documented in Tables 1-3 that are attached to the Notice Letter as Appendix A, the

extensive water quality violations and corrective action violations described herein, and ongoing

discharges of polluted industrial stormwater from the Facility demonstrate that Kinder Morgan is

not maintaining or implementing a SWPCP that includes adequate control measures and all of

the required SWPCP components. Defendant violated the Permit conditions described in the first

paragraph of Section II.B of the Notice Letter during the periods and in the manners described in

the second and third paragraphs of Section II.B of the Notice Letter. Those allegations are hereby

COMPLAINT – 13
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 14 of 26

incorporated herein by reference. These violations are ongoing.

39. In addition, Kinder Morgan violated and continues to violate these permit condi-

tions by maintaining and implementing inadequate SWPCP provisions applicable to Outfalls 003

and 004 at the Facility. Defendant’s violations of the permit requirements applicable to Outfalls

003 and 004 are described in the final two paragraphs of Section II.B of the Notice Letter and are

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

March 1, 2015 and are ongoing.

3. Kinder Morgan Violated Its Permits by Failing to Comply with the Permits’
Corrective Action Requirements.

40. Schedules A.10.a of the Permits require Kinder Morgan to undertake a Tier I cor-

rective action response each time a stormwater monitoring result exceeds any statewide bench-

mark, sector-specific benchmark, or reference concentration for an impairment pollutant. Specif-

ically, that Permit condition requires Kinder Morgan, within 30 calendar days of obtaining moni-

toring results demonstrating a benchmark or reference concentration exceedance, to: (1) investi-

gate the cause of the elevated pollutant levels and develop a plan for controlling significant mate-

rials from previous operations; (2) review the SWPCP and the selection, design, installation and

implementation of control measures to ensure compliance with the permit, including evaluating

whether treatment measures have been properly installed, maintained, and implemented, and

evaluate whether additional removal or modifications to pollutant source isolation are necessary;

(3) revise the SWPCP if necessary and submit the revised SWPCP and a schedule for imple-

menting additional control measures to ODEQ or BES; and (4) write a Tier I report and, if ex-

ceedance of an impairment pollutant benchmark triggered the Tier I corrective response, submit

the Tier I report to ODEQ or BES within sixty days of receiving the monitoring results that trig-

gered the corrective action response.

COMPLAINT – 14
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 15 of 26

41. Schedule A.10.b of the 2012 Permit required Kinder Morgan to implement Tier I

corrective actions before the next storm event or as soon as practicable. Schedule A.10.b of the

2017 Permit requires Kinder Morgan to implement Tier I corrective actions no later than thirty

days after receiving monitoring results showing an exceedance of any applicable statewide

benchmark in Schedule A.9 of the Permits, any sector-specific benchmark in Schedule E of the

Permits, or any reference concentration for impairment pollutants identified in Kinder Morgan’s

permit assignment letters. If Kinder Morgan cannot complete corrective actions within those

time periods it must explain the reasoning for the delay in a Tier 1 report.

42. Kinder Morgan violated Schedule A.10.a.iii of the 2012 Permit, and Schedule

A.10.a.iv of the 2017 Permit, by preparing and/or submitting inadequate Tier I corrective action

reports. These permit conditions require Kinder Morgan to summarize specific information in a

“Tier 1 Report,” including: (1) the results of its investigation into the cause of elevated pollutant

levels; (2) corrective actions taken or to be taken, or, if determined that no corrective action is

necessary, the basis for this determination; and (3) documentation of whether SWPCP revisions

are necessary. Defendant violated these permit conditions by failing to timely submit Tier I Re-

ports that meet all the above criteria. These violations occurred during the periods and in the

manners stated in Section II.C.1 on pages 8 and 9 of the Notice Letter and are hereby incorpo-

rated by reference. These violations are ongoing.

43. Additionally, Kinder Morgan violated Schedule A.10.a.iii of the 2012 Permit, and

Schedule A.10.a.iv of the 2017 Permit, by preparing and/or submitting Tier I corrective action

reports on multiple dates that fail to identify corrective actions taken or to be taken by the dead-

lines stated in Schedules A.10.b of the Permits, including the dates corrective actions were com-

pleted or expected to be completed, without explaining why Kinder Morgan needed additional

COMPLAINT – 15
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 16 of 26

time to complete the corrective action. These violations occurred during the periods and in the

manners stated in Section II.C.1 on page 10 of the Notice Letter and are hereby incorporated by

reference. These violations are ongoing.

44. Kinder Morgan violated Schedules A.10.b of the Permits by failing to implement

corrective actions in a timely manner, including implementation of modified control measures,

even though such corrective actions are necessary to meet the effluent limitations and other con-

ditions in the Permits. As documented in Tables 1-3 that are attached to the Notice Letter as Ap-

pendix A, Kinder Morgan regularly discharges in excess of the statewide benchmarks in Sched-

ules A.9 of the Permits, the sector-specific benchmarks in Schedule E of the Permits, and the ref-

erence concentrations for impairment pollutants identified in Kinder Morgan’s permit assign-

ment letters. Each exceedance triggered Kinder Morgan’s obligation to implement corrective ac-

tions by the deadlines stated in Schedules A.10.b of the Permits. The repeated exceedances of

multiple pollutant benchmarks and reference concentrations demonstrate that Kinder Morgan is

not implementing corrective actions in a timely manner as required by the Permits. Additionally,

Kinder Morgan has not completed Tier 1 corrective actions within the timeframe required in the

2017 Permit for the exceedances of Benzo(a)anthracene, Benzo(a)pyrene, Benzo(b)fluoranthene,

Benzo(k)fluoranthene, Chrysene, Dibenz(a,h)anthracene, and Indeno(1,2,3-cd)pyrene that oc-

curred on October 16, 2019. These requirements and Defendant’s violations thereof are de-

scribed in Section II.C.2 of the Notice Letter and are hereby incorporated by reference. These vi-

olations have occurred each and every day since March 14, 2015, and are ongoing.

//

//

COMPLAINT – 16
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 17 of 26

4. Kinder Morgan Violated Its Permits by Failing to Comply with the Permits’
Water Quality Based Effluent Limitations and Related Reporting Require-
ments.

45. Schedules A.4.a of the Permits prohibit Kinder Morgan from causing or contrib-

uting to a violation of instream water quality standards established in Oregon Administrative

Rules (“OAR”) 340-041. And Schedules F.A6 of the Permits require Kinder Morgan to comply

with any applicable effluent standards or prohibitions established under OAR 340-041-0033 for

toxic pollutants.

46. OAR 340-041-007(1) states that “the highest and best practicable treatment and/or

control of wastes, activities, and flows must in every case be provided so as to maintain...toxic

materials...at the lowest possible levels.” OAR 340-041-0033(1) prohibits the introduction of

toxic substances above natural background levels in concentrations and/or combinations that

may be harmful to public health, safety, aquatic life, and wildlife. And OAR 340-041-0033(2)

states that levels of toxic substances in waters of the state may not exceed the applicable aquatic

life criteria as defined in Table 30 under OAR 340-041-0083. ODEQ established these and other

water quality standards to protect human health and other important beneficial uses such as rec-

reation, drinking water sources, and habitat for salmon and steelhead. Or. Rev. Stat.

§§ 468B0.15, 468B0.48.

47. The Permits established reference concentrations for impairment pollutants based

on these water quality standards. Kinder Morgan discharges into a water body (the Willamette

River) identified as failing to meet water quality standards for iron, copper, benzo(a)anthrocene,

benzo(a)pyrene, benzo(b)fluoranthene 3,4, benzo(k)fluoranthene, chrysene, dibenz(a,h)anthra-

cene, and indeno(1,2,3- cd)pyrene. Table 30 and Table 40 in OAR 340-041-0083 identify the

concentrations of these toxic pollutants that may be harmful. Table 30 identifies toxic pollutant

COMPLAINT – 17
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 18 of 26

criteria for the protection of aquatic life. And Table 40 identifies concentrations of toxic pollu-

tants “derived to protect Oregonians from potential adverse health impacts associated with long-

term exposure to toxic substances associated with consumption of fish, shellfish, and water.” In

its permit assignment letters to Kinder Morgan, ODEQ incorporated these aquatic life and human

health criteria into the Permits as reference concentrations for impairment pollutants.

48. Kinder Morgan violated and continues to violate Schedules A.4.a and F.A6 of the

Permits by discharging pollutants and industrial stormwater from the facility in amounts or man-

ners that cause or contribute to violations of these and other water quality standards. As indicated

in Tables 1-3 that are attached to the Notice Letter as Appendix A, discharges from Kinder Mor-

gan’s Facility regularly contain elevated levels of each of the following, toxic impairment pollu-

tants: iron, copper, benzo(a)anthrocene, benzo(a)pyrene, benzo(b)fluoranthene 3,4, benzo(k)fluo-

ranthene, chrysene, dibenz(a,h)anthracene, and indeno(1,2,3- cd)pyrene. Discharges of those pol-

lutants from the Facility violate OAR 340-041-0033(1) because they contribute toxic substances

above natural background levels in concentrations that may be harmful to public health, safety,

aquatic life, and wildlife. With regard to iron and copper, the discharges also violate OAR 340-

041-0033(2) by exceeding the applicable aquatic life criteria for these pollutants. And the dis-

charges of iron, copper, benzo(a)anthrocene, benzo(a)pyrene, benzo(b)fluoranthene 3,4,

benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene, and indeno(1,2,3- cd)pyrene violate

OAR 340-041-007(1) because Kinder Morgan failed to use the highest and best practicable treat-

ment to maintain these toxic materials at the lowest possible levels.

49. Kinder Morgan violated Schedules A.4.a and F.A6 of the Permits each and every

day since March 1, 2015 that Kinder Morgan discharged iron, dissolved copper, benzo(a)anthro-

COMPLAINT – 18
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 19 of 26

cene, benzo(a)pyrene, benzo(b)fluoranthene 3,4, benzo(k)fluoranthene, chrysene, dibenz(a,h)an-

thracene, or indeno(1,2,3-cd)pyrene from the Facility. As noted in Tables 1-3 that are attached to

the Notice Letter as Appendix A, some of those discharges and violations occurred on March 14,

2015; May 1, 2015; October 25, 2015; November 13, 2015; January 17, 2016; April 4, 2016; Oc-

tober 26, 2016; November 22, 2016; February 15, 2017; March 15, 2017; November 10, 2017;

November 30, 2017, June 8, 2018; October 5, 2018; November 4, 2018; November 23, 2018;

January 20, 2019; February 14, 2019; May 15, 2019; September 17, 2019; and October 16, 2019.

Other violations occurred each and every day since March 1, 2015 on which there was 0.1 inch

or more of precipitation at the Facility because, on information and belief, on those days the Fa-

cility discharged pollutants, industrial stormwater or wastewater to the Willamette River that in-

cluded iron, dissolved copper, benzo(a)anthrocene, benzo(a)pyrene, benzo(b)fluoranthene 3,4,

benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene, or indeno(1,2,3-cd)pyrene in excess of

one or more of the impairment pollutant benchmarks established in the Permits and permit as-

signment letters for the Facility. Defendant’s violations of Schedules A.4.a and F.A6 of the Per-

mits are described in the fifth paragraph of Section II.D of the Notice Letter and are incorporated

herein by reference. These violations are ongoing.

50. Additionally, Schedules A.4.b of the Permits require Kinder Morgan to take cer-

tain actions upon becoming aware that a discharge from the Facility caused or contributed to an

exceedance of water quality standards, including: investigating the conditions that triggered the

violation; reviewing the SWPCP to ensure compliance with the permit; submitting a Water Qual-

ity Standards Corrective Action report within thirty days of receiving the relevant monitoring

data, which report must meet certain criteria stated in the Permits; and implementing any re-

quired corrective actions before the next storm event or within thirty days after discovering the

COMPLAINT – 19
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 20 of 26

violation, whichever comes first. Kinder Morgan violated these requirements by failing to inves-

tigate the conditions triggering water quality exceedances for iron, dissolved copper, benzo(a)an-

throcene, benzo(a)pyrene, benzo(b)fluoranthene 3,4, benzo(k)fluoranthene, chrysene,

dibenz(a,h)anthracene, or indeno(1,2,3-cd)pyrene; failing to review the SWPCP to ensure com-

pliance with the Permits; failing to submit each and every required Water Quality Standards Cor-

rective Action report within thirty days of receiving the relevant monitoring data; and failing to

implement required corrective actions before the next storm event or within thirty days after dis-

covering the violation, whichever comes first. Defendant’s violations of Schedules A.4.b of the

Permits are described in the final paragraph of Section II.D of the Notice Letter and are incorpo-

rated herein by reference. These violations occurred each and every day since March 1, 2015,

and are ongoing.

5. Kinder Morgan Violated Its Permits by Failing to Comply with the Permits’
Inspection Requirements.

51. Schedules B.7.a of the Permits require Kinder Morgan to perform monthly in-

spections of “areas where industrial materials or activities are exposed to stormwater and areas

where stormwater control measures, structures, catch basins, and treatment facilities are located.”

These inspections must include “visual observation for the presence of floating, suspended or

settleable solids, color, odor, foam, visible oil sheen, or other obvious indicators of pollution in

the stormwater discharge at all discharge point(s) . . . .” When these observations show evidence

of such stormwater pollution, Kinder Morgan must complete a Tier I corrective action report.

These visual observations “must be conducted during a discharge event if one occurs during the

month, regardless whether the monthly site inspection has already occurred.” Inspections must

include all discharge points. And Schedule B.7.b of the 2012 Permit and Schedule B.7.f of the

COMPLAINT – 20
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 21 of 26

2017 Permit require Kinder Morgan to document all inspections in an inspection report that in-

cludes certain specific information and that is retained on site and submitted to ODEQ or BES

upon request.

52. Kinder Morgan violated the inspection requirements in Schedules B.7 of the Per-

mits on multiple occasions. For example, Kinder Morgan violated Schedule B.7.a., B.7.b., and

B.7.c. by failing to inspect Outfalls 003 and 004 on a monthly basis between March 1, 2015 and

when Kinder Morgan acknowledged discharges from those outfalls in late 2018. These require-

ments and Defendant’s violations thereof are described in Section II.E of the Notice Letter and

are hereby incorporated by reference. These violations are ongoing.

6. Kinder Morgan Violated Its Permits by Failing to Comply with Additional

Requirements Applicable to Outfalls 003 and 004 and Other Sources of Dis-
charge at the Facility.

53. Schedules B.2.b of the Permits require Kinder Morgan to ensure that stormwater

samples are representative of discharges from the Facility. Kinder Morgan violated these Permit

conditions each and every day since March 1, 2015 that it sampled discharges from Outfalls A

(001) or B (002) without sampling discharges from Outfalls 003 or 004 because samples from

Outfalls A (001) and B (002) are not representative of samples from Outfalls 003 or 004.

54. Schedule B.2.c of the Permits require Kinder Morgan to monitor each discharge

point unless certain circumstances apply. Schedule B.2.e and Table 4 of the 2012 Permit required

Kinder Morgan to monitor stormwater discharges for statewide benchmark pollutants and appli-

cable sector-specific benchmark pollutants four times per year and to monitor stormwater dis-

charges for impairment pollutants two times per year. Schedule B.2.f and Table 5 of the 2017

Permit then require Kinder Morgan to monitor stormwater discharges for statewide benchmark

pollutants, applicable sector-specific benchmark pollutants, and any impairment pollutants four

COMPLAINT – 21
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 22 of 26

times per year. Kinder Morgan violated these conditions of the 2012 Permit and 2017 Permit by

failing to monitor Outfalls 003 and 004 four times per year between March 1, 2015 and Novem-

ber 4, 2018.

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

II.F of the Notice Letter and are hereby incorporated by reference. These violations are ongoing

or reasonably likely to recur.

7. Kinder Morgan Violated Its Permits by Failing to Comply with the Permits’
Requirements to Prepare and Submit Noncompliance Reports.

56. Schedules F.D6 of the Permits require Kinder Morgan to report all instances of

noncompliance with its permit not reported under General Condition D4 or D5 at the time

Kinder Morgan submits monitoring reports. Each noncompliance report must include: (1) a de-

scription of the noncompliance and its cause; (2) the period of noncompliance, including exact

dates and times; (3) the estimated time the noncompliance is expected to continue if it has not

been corrected; and (4) the steps taken or planned to reduce, eliminate, and prevent reoccurrence

of the noncompliance. Kinder Morgan violated Schedules F.D6 of the Permits by failing to pre-

pare and submit noncompliance reports that fully and accurately identify Kinder Morgan’s non-

compliance with the Permits and that include all the required information. These requirements

and Defendant’s violations thereof are described in Section II.G of the Notice Letter and are

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

March 1, 2015, and are ongoing.

8. Kinder Morgan Violated its Permits by Failing to Comply with the Permits’
General Requirements.

57. Schedules F.A1 of the Permits require Kinder Morgan to comply with all condi-

tions of its Permits. Each and every permit violation described herein is also a violation of

COMPLAINT – 22
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 23 of 26

Schedules F.A1 of the Permits. Kinder Morgan violated these Permit conditions each and every

day since March 1, 2015. These violations are ongoing.

58. Schedules F.A3 of the Permits require Kinder Morgan to take all reasonable steps

to minimize or prevent any discharge in violation of the Permits. Each and every permit violation

described herein is also a violation of Schedules F.A3 of the Permits. Kinder Morgan violated

these Permit conditions each and every day since March 1, 2015, by violating the Permits and by

failing to take reasonable steps to minimize or prevent discharges in violation of the Permits.

These violations are ongoing.

59. Schedules F.B1 of the Permits require Kinder Morgan to “at all times properly op-

erate and maintain all facilities and systems of treatment and control (and related appurtenances)

that are installed or used by the permittee to achieve compliance with the conditions” of the Per-

mits. Kinder Morgan violated these Permit conditions each and every day since March 1, 2015

by failing to properly operate and maintain all systems of treatment and control, including

Kinder Morgan’s SWPCP, to achieve compliance with the Permits. These violations are ongo-

ing.

60. These requirements and Defendant’s violations thereof are described in Sec-

tion II.H of the Notice Letter and are hereby incorporated by reference.

61. Defendant’s unlawful discharges degrade the environment and the water quality

of the Willamette River and the Columbia River.

62. Defendant’s unlawful discharges of pollutants and permit violations were avoida-

ble had Defendant been diligent in overseeing and controlling operations, maintenance, monitor-

ing, and compliance with the law.

63. Defendant has benefitted economically from its unlawful discharges of pollutants

COMPLAINT – 23
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 24 of 26

and permit violations.

64. The NPDES permit violations committed by Defendant are continuing or are rea-

sonably likely to recur. Any and all additional violations of Defendant’s NPDES Permits and the

CWA which occur after those described in NEDC’s Notice Letter but before a final decision in

this action are continuing violations subject to this Complaint.

65. Without the imposition of appropriate civil penalties and the issuance of an in-

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

injury of NEDC, its members, and others.

VI. CAUSE OF ACTION.

66. Plaintiff hereby alleges and incorporates by reference all of the preceding para-

graphs.

67. Defendant Kinder Morgan is a “person” within the meaning of Section 301(a) of

the Clean Water Act, 33 U.S.C. §1311(a), and is subject to suit under the Act’s citizen suit provi-

sion, 33 U.S.C. § 1365.

68. The violations of Defendant’s NPDES Permits described herein and in the Notice

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

the CWA, 33 U.S.C. § 1365. Defendant Kinder Morgan has violated and is violating an “effluent

standard or limitation” as that term is defined by Section 505 of the Act, 33 U.S.C. § 1365, by

violating the terms and conditions of its NPDES Permits.

//

//

COMPLAINT – 24
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 25 of 26

VII. RELIEF REQUESTED.

  WHEREFORE, Plaintiff respectfully requests that the Court grant the following relief:

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

Permits and the Clean Water Act, as alleged herein;

B. Enjoin Defendant from operating its Facility in a manner that results in further vi-

olations of its NPDES permits or the CWA;

C. Order Defendant to immediately implement a SWPCP that complies with its 2017

Permit or any subsequent NPDES permit applicable to the Facility;

D. Order Defendant to remediate the environmental damage and ongoing impacts re-

sulting from its violations;

E. Order Defendant to develop and/or comply with appropriate quality assurance

procedures to ensure future compliance with the Clean Water Act;

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

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

pliance with all of the conditions of its NPDES permit, with copies of all reports and other docu-

ments that Defendant submits to the EPA, ODEQ, or BES regarding Defendant’s NPDES Permit

for the Facility at the time those documents are submitted to these agencies;

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

caused by its violations;

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

time request during the pendency of this case;

I. Order Defendant to pay civil penalties pursuant to Sections 309(d) and 505(a) of

the CWA, 33 U.S.C. §§ 1319(d) and 1365(a), and 40 C.F.R. § 19;

COMPLAINT – 25
 Case 3:20-cv-00706 Document 1 Filed 04/29/20 Page 26 of 26

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

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

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

RESPECTFULLY SUBMITTED this 29th day of April 2020.

KAMPMEIER & KNUTSEN PLLC

By: s/ Emma Bruden

Emma A. O. Bruden, OSB # 163525
Brian Knutsen, OSB # 112266
221 SE 11th Avenue, Suite 217
Portland, Oregon 97214
Telephone: (503) 841-6515 (Knutsen)
(503) 719-5641 (Bruden)
Email: [email protected]
[email protected]

NORTHWEST ENVIRONMENTAL DEFENSE CENTER

Jonah Sandford, OSB # 154711

10015 SW Terwilliger Blvd.
Portland, Oregon 97219
Telephone: (503) 768-6726
Email: [email protected]

Attorneys for Plaintiff Northwest Environmental Defense Center 

COMPLAINT – 26