2 3 4 5 6 7 8 9 Exempt From Filing Fees: EDMUND G. BROWN, (Gov. Code § 6103) Attorney General of the State of California RICHARD J. MAGASIN, Supervising Deputy Attorney General VENTURA GARY E. TAVETIAN (SBN 117r1li,.rrRACK ASSIGHMEN r SUPERIOR COURT NDOAH GOLDEN-GKRA~NER (Sffl ~ ctW/ETAINER FILED STANDARD eputy Attorneys ene1 a1 300 South Spring Street, 11th Flo UNINSURED MOTORIST APR 15 2010 Los Angeles, California 90013 TRACT COORD TO NOTIFY Telephone: (213) 897-2614 REAOTHEVENTURACOUNTY . MICHI\SL C. PLANET Facsimile: (213) 897-2802 LOCALRULESTHATGOVEAN BY·- Executive Olltoor llnd Olork E-Mail: Noah.Golden.Krasner@dc5j~~m,ce WITH 31:)CT · =--~-2ln 0-0037 1(i8o-CU-MC-S: ;-J; COMPLAINT FOR CIVIL LIABILITY, PENALTIES, AND INJUNCTNE RELIEF Plaintiff, v. Judge: THE BOEING COMP ANY, DOES 1 THROUGH 10, 18 Defendant. 19 20 21 . 22 23 24 Plaintiff, THE PEOPLE OF THE STATE OF CALIFORNIA, ex rel. , CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, LOS ANGELES REGION is informed and believes and based thereon alleges: 25 26 27 28 1 COMPLAINT FOR CIVIL PENALTfES AND INJUNCTIVE RELIEF PARTIES TO THE ACTION 1 2 1. The California Regional Water Quality Control Board, Los Angeles Region 3 (Regional Board) is a public agency of the State of California organized and existing pursuant to 4 the Water Code sections 13000 et seq. The Regional Board is the principal State agency 5 responsible for the coordination and control of water quality in the Los Angeles Region. 6 Defendants' acts that are the subject of this lawsuit all occurre.d within Ventura County, and fall 7 under the responsibility of the Regional Board. The Regional Board, as part of its legislatively 8 mandated duties, is required to administer Water Code sections 13000 et seq. for the Los Angeles 9 Region, including Ventura County. 10 2. The Boeing Company (Boeing) is a Delaware corporation authorized to do 11 business in Ventura County, California. Boeing runs the Santa Susana Field Laboratory (SSFL) 12 facility located at the top of Woolsey Canyon Road in the Simi Hills, Ventura County, California. 13 Boeing operations at SSFL since 1950 have included, research, development, assembly, 14 disassembly, and testing ofrocket engines, missile components, and chemical lasers. Boeing 15 controls the discharges of storm water runoff and wastewater from SSFL under the waste 16 discharge requirements of National Pollutant Discharge Elimination System (NPDES) Permit No. 17 CA0001309. Violations of this NPDES permit are the subject of this complaint. 18 3. The true names and capacities, whether individual, corporate, associate or 19 otherwise, of the defendants sued in this Complaint under the fictitious names of Does 1 through 20 10, inclusive, are unknown to the Regional Board who therefore sues each such defendant by 21 such fictitious names. These defendants are named as Doe defendants pursuant to Code of Civil 22 Procedure section 474. The Regional Board will ask leave of court to amend this complaint to 23 show the true name and capacity of each defendant when these facts are discovered. JURISDICTION AND VENUE 24 25 4. The superior court has jurisdiction of this matter under Article VI, § 10 of the 26 California Constitution, under the Water Code sections 13385 and 13386 and under the Code of 27 Civil Procedure section 410.10. Pursuant to the Water Code sections 13385, subdivision (b), and 28 2 COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF 1 13386, the Regional Board requested that the Attorney General commence this action in the 2 Superior Court of California. 5. 3 4 Venue is proper in the County of Ventura under Water Code section 13361 because the discharges and violations described herein occurred in the County of Ventura. INTRODUCTION 5 6. 6 This is a civil action by the People of the State of California, ex rel. Regional 7 Board. The Regional Board is a public agency of the State of California and was established and 8 authorized by the Porter-Cologne Water Quality Control Act, Water Code sections 13000 et seq. 9 (Porter-Cologne Act). Within the Los Angeles Region, which includes the County of Ventura, 10 the Regional Board is responsible for the control of water pollution. 11 7. This action is brought against Boeing pursuant to Water Code sections 13385, 12 subdivision (b), and 13386. Water Code section 13385, subdivision (b), authorizes the Attorney 13 General, upon request of the Regional Board, to commence an action in superior court to impose 14 liability ofup to $25,000 per day, for each violation of the enumerated provisions of section 15 13385. 16 8. Boeing Company's discharge of storm water from SSFL in violation ofNPDES 17 Pennit No. CA0001309 to the Los Angeles River via Bell Creek and to Calleguas Creek via 18 Arroyo Simi and Arroyo Las Posas, both navigable waters of the Unites States, constitutes a 19 continuing violation of California Water Code (CWC) section 133376 and Clean Water Act 20 section 301, 33 United States Code Section 1311. 21 9. The Regional Board has issued Boeing six Notices of Violations (NOVs), two 22 Cleanup and Abatement Orders (CAOs), and a Cease and Desist Order (CDO) between August 23 1998 and June 2008. These violations have included effluent limit exceedances for chloride, 24 radioactivity (gross beta), iron (Fe), mercury (Hg), pH, manganese (Mn), nitrite plus nitrate as 25 nitrogen (N0 2 + N0 3 as N), dioxins (TCDD), zinc (Zn) and other pollutants which can degrade 26 water quality and impact beneficial uses, and which are defined as wastes under the Porter- 27 Cologne Act. 28 3 COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF 1 2 3 10. The discharge of inadequately treated storm water also created a condition of pollution and degraded navigable waters of the United States. 11. Discharges of pH outside the permitted range can be acutely toxic to aquatic 4 organisms. TCDD is a known carcinogen and has a potential for bioaccumulation in animals and 5 humans. Boeing discharged TCDD in excess of its permit limitations. 6 12. By this action, the Regional Board seeks: (1) civil penalties from Boeing for past 7 and continuing violations of Water Code section 13376, (2) civil penalties from Boeing for past 8 and continuing violations of 13385 subdivision (b), (3) civil penalties from Boeing for past and 9 continuing violations of the Clean Water Act section 301, and; (4) an injunction pursuant to 10 Water Code section 13386 to restrain Boeing from continuing to violate Water Code section 11 13385; and, (5) pursuant to Code of Civil Procedure section 1021.8, an award of attorneys' fees 12 and costs incurred by the Regional Board. STATUTORY FRAMEWORK 13 14 13. Water Code section 13385 imposes liability on any person, including corporations, 15 who violate Water Code section 13376, the Clean Water Act section 301, any waste discharge 16 requirements issued pursuant to Division 7. of the Water Code, or any water quality certification 17 issued pursuant to Water Code section 13160 and Clean Water Act section 401. 18 14. Water Code section 13376 prohibits "[t]he discharge of pollutants" into Waters of 19 the United States "by any person except as authorized by waste discharge requirements." 20 "Waters of the United States" includes all tributaries of the Los Angeles River. 21 15. Clean Water Act section 301, subdivision (a), prohibits the discharge of pollutants 22 to Waters of the United States except in compliance with a proper pennitand water quality 23 certification from the State in which the discharge will occur. 24 16. Water Code section 13386 provides that upon "any threatened or continuing 25 violation of any of the requirements listed in paragraphs (1) to (6), inclusive, of subdivision (a) of 26 Section 13385 ... the Attorney General, upon the request of the state board or regional board 27 shall petition the appropriate court for the issuance of a preliminary or permanent injunction" 28 restraining that person from continuing the violation. The Regional Board has requested the 4 COMPLAINT FOR.CIVIL PENALTIES AND INJUNCTIVE RELIEF 1 Attorney General to apply to the superior court for an injunction to restrain Boeing from 2 continuing these violations. 3 4 FACTUAL ALLEGATIONS 17. Boeing is in noncompliance with waste discharge requirements established in 5 Board Order Nos. R4-2004-0111, R4-2006-0008, R4-2006-0036, R4-2007-0055, and R4-2009- 6 0058, NPDES Permit No. CA0001309. These permit limits include, among others, an 7 instantaneous limit for pH of 6.5-8.6, a daily limit ofTCDD of2.8E-08 ug/L, and a monthly limit 8 of TCDD of l.4E-08 ug/L. 9 18. Monitoring and Reporting Program No. 6027, which is part of Order Nos. R4- 10 2004-0111, R4-2006-0008, R4-2006-0036, R4-2007-0055, and R4-2009-0058, requires that 11 Boeing submit to the Regional Board at regular intervals monitoring reports covering the waste 12 discharges from SSFL. 13 14 15 19. Boeing intermittently discharges storm water runoff through outfalls 001 through 018 at the site .. 20. ,At least forty (40) violations of Order Nos. R4-2004-0111, R4-2006-0008, R4- 16 2006-0036, R4-2007-0055, and R4-2009-0058 were noted in Boeing's self-monitoring reports 17 during the 4th Quarter 2006, 1st, 3rd and 4th Quarters 2007, 1st and 4th Quarters 2008, 1st and 18 4th Quarters 2009. 19 21. Between December 10, 2006, and December 7, 2009, violations have occurred at 20 outfalls: 003, 004, 006, 009, 010, 011, and 018. This includes pollution levels exceeding 21 permitted levels which have flowed both into the Los Angeles River via Bell Creek and to 22 Calleguas Creek via Arroyo Simi and Arroyo Las Posas 23 22. These violations include effluent limit exceedances for chloride, radioactivity 24 (gross beta), iron (Fe), mercury (Hg), pH, manganese (Mn), nitrite plus nitrate as nitrogen (N02 + 25 N0 3 as N), dioxins (TCDD), and zinc (Zn). 26 27 28 5 COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF FIRST CAUSE OF ACTION VIOLATIONS OF WATER CODE SECTIONS 13376 AND 13385 1 2 23. The allegations against Boeing in paragraphs 1 through 22 are hereby incorporated 3 by reference as if fully alleged herein. 4 24. Water Code section 13376 prohibits "[t]he discharge of pollutants" into Waters of 5 the United States "by any person except as authorized by waste discharge requirements." 6 25. The discharge of pollutants self-reported by Boeing exceeded those authorized by 7 NPDES Permit CA0001309. 8 26. 9 These pollutants include effluent limit exceedances for chloride, radioactivity (gross beta), iron (Fe), mercury (Hg), pH, manganese (Mn), nitrite plus nitrate as nitrogen (N02 + 10 11 12 N0 3 as N), dioxins (TCDD), and zinc (Zn), which are defined as wastes under the Porter-Cologne Act. 27. Between December 2006 and December 2009, Boeing exceeded their waste 13 discharge requirements on at least 40 occasions. 14 28. Pollutants from SSFL continue to discharge in excess of the NPDES limits. 15 Therefore, these violations are continuing to this day. 16 29. Violations of Water Code section 13376 are also violations of Water Code section 17 13385, subdivision (a)(l). 18 19 30. Boeing is also liable under Water Code section 13385 for penalties up to $25,000 per day, per violation. 20 31. Each continuing violation also subjects Boeing to injunctive relief pursuant to 21 22 Water Code section 13386. SECOND CAUSE OF ACTION VIOLATIONS OF WATER CODE SECTION 13385, SUBDIVISION (A)(5) 23 24 25 32. The allegations in paragraphs 1 through 31 are hereby incorporated by reference as if fully alleged herein. 26 27 28 6 COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF 1 33. Clean Water Act section 301, subdivision (a), prohibits the discharge of pollutants 2 to Waters of the United States except in compliance with a proper permit and water quality 3 certification :from the State in which the discharge will occur. 4 5 6 7 8 9 10 11 12 13 14 15 34. By discharging pollutants in excess of permitted levels, Boeing was not in compliance with its NPDES permit. 35. Between December 2006 and December 2009, Boeing exceeded its NPDES permit limits on at least 40 occasions. 36. Pollutants from SSFL continue to discharge in excess of the NPDES limits. Therefore, these violations are continuing to this day. 37. Violations of Clean Water Act section 301 are also violations of Water Code section 13385, subdivision, (a)(5). 38. Boeing is also liable civilly under Water Code section 13385 for penalties up to $25,000 per day, per violation. 39. Each continuing violation also subjects Boeing to injunctive relief pursuant to Water Code section 13386. THIRD CAUSE OF ACTION VIOLATIONS OF WATER CODE SECTION 13385, SUBDIVISION (A)(2) 16 17 40. 18 The allegations in paragraphs 1 through 39 are hereby incorporated by reference as if fully alleged herein. 19 20 21 22 41.. Water Code Section 13385, subdivision (A)(2) applies to anyone who violates a "waste discharge requirements" issued pursuant to the Water Code. The discharge of pollutants self-reported by Boeing exceeded those authorized by Board Order Nos. R4-2004-0111, R42006-0008, R4-2006-0036, R4-2007-0055 and R4-2009-0058. 23 42. 24 Between December 2006, and December 2009, Boeing exceeded their waste discharge requirements on at least 40 occasions. 25 43. 26 To the extent that Boeing was acting pursuant to the Board Orders, then Boeing violated that permit in violation of Water Code section 13385, subdivision (a)(2). 27 28 7 COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF 1 2 44. Therefore, these violations are continuing to this day. 3 4 5 6 7 8 Pollutants from SSFL continue to discharge in excess of the Board Orders. 45. Boeing's violations of the Board Orders are also violations of Water Code section 46. Boeing is liable civilly under Water Code section 13385 for penalties up to 13385. $25,000 per day, per violation. 47. Each continuing violation also subjects Boeing to injunctive relief pursuant to Water Code section 13386. 9 PRAYER 10 WHEREFORE, the Regional Board prays for judgment against the Defendant, as follows: 11 1. Pursuant to Water Code section 13385, subdivision (a)(l), the court assess a civil 12 penalty not to exceed $25,000 per day, for each violation of Water Code section 13376, by the 13 defendants, according to proof; 14 2. Pursuant to Water Code section 13385, subdivision (a)(5), the court assess a civil 15 penalty not to exceed $25,000 per day, for each violation of the Clean Water Act section 301, by 16 the defendants, according to proof; 17 18 19 20 21 3. Pursuant to Water Code section 13385, subdivision (a)(2), the court assess a civil penalty not to exceed $25,000 per day, for each violation by the defendants, according to proof. 4. Pursuant to Water Code section 13386, the court issue an injunction to restrain the defendants from continuing to violate Water Code section 13385, according to proof; 5. Pursuant to Code of Civil Procedure section 1021.8, the court grant to the Regional 22 Board all its costs, including reasonable attorneys' fees, for investigating and prosecuting this 23 action, according to proof; and, 24 6. \ For all other relief as the court deems just and proper. 25 26 27 28 8 COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF 1 Dated: April (:('', 2010 Respectfully submitted, 2 EDMUND G. BROWN JR., Attorney General of the State of California RICHARD J. MAGASIN, Supervising Deputy Attorney General GARY E. TAVETIAN, NOAH GOLDEN-KRASNER, Deputy Attorneys General 3 4 5 6 7 B~~~ 8 Noah Golden-Krasner 9 Attorneys for P~aintiffs, the People of the State of California, ex rel., California Regional Water Quality Control Board, Los Angeles Region 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF