Case: 4:17-cv-01361 Doc #: 1 Filed: 06/27/17 1 of 39. PageID #: 1

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
FRESHWATER ACCOUNTABILITY
PROJECT,
Plaintiff,
v.
PATRIOT WATER TREATMENT, LLC,
and
CITY OF WARREN, OHIO
Defendants.

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CIVIL ACTION NO.
JUDGE:
COMPLAINT AND DEMAND FOR JURY
TRIAL

COMPLAINT
Plaintiff FreshWater Accountability Project (“FWAP”) brings this action pursuant to the
citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365, and avers the following:
NATURE OF THE ACTION
1.  

FreshWater Accountability Project brings this citizen suit under the citizen enforcement
provision of the Clean Water Act, 33 U.S.C. § 1365, and seeks declaratory and injunctive
relief, the assessment of civil penalties, and an award of litigation costs and fees to
address both the City of Warren (“Warren”) and Patriot Water Treatment, LLC’s
(“Patriot”) violations of the Clean Water Act.

2.  

Defendant Patriot has operated and continues to operate its Centralized Waste Treatment
Facility in violation of the Clean Water Act. Specifically:

 
  

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a.   Patriot has violated and continues to violate the numeric effluent standards and
limitations of the pretreatment standards established in Patriot’s Administrative
Order, Warren’s local ordinances, and Patriot’s Permits-to-Install;
b.   Patriot has violated and continues to violate the reporting requirements contained
in its Administrative Order and Warren’s local ordinances;
c.   Patriot has violated and continues to violate the general prohibitions contained in
its Administrative Order, Warren’s local ordinances, and National Pretreatment
Categorical Standards by impairing the operation and efficiency of Warren’s
Water Pollution Control Facility and by causing Warren’s effluent to exceed the
effluent standards in its NPDES permit.
3.  

Defendant City of Warren has operated and continues to operate its Water Pollution
Control Facility in violation of the Clean Water Act. Specifically:
a.   Warren has violated and continues to violate the numeric effluent standards and
limitations in its NPDES permit.
b.   Warren has violated and continues to violate its NPDES permit by failing to issue
adequate control mechanisms to Patriot, a significant industrial user, to ensure
compliance with pretreatment standards.
c.   Warren has violated and continues to violate its NPDES permit by failing to
develop and enforce local limits for Barium, a pollutant that passes through the
Water Pollution Control Facility and into the Mahoning River.
JURISDICTION AND VENUE

4.  

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal
question), and 33 U.S.C. § 1365(a) (Clean Water Act).

 
  

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5.  

This Court may issue a declaratory judgment and further relief pursuant to 20 U.S.C. §
2201 & 2202.

6.  

FreshWater Accountability Project gave notice of the violations alleged in this
Complaint, and their intent to file suit, on April 25, 2017, prior to commencement of this
lawsuit. FreshWater Accountability Project provided such notice to Patriot Water
Treatment, LLC, the City of Warren’s Water Pollution Control Department, and all other
persons or entities required by the Section 505 of the Clean Water Act. A copy of the
notice letter is attached as Exhibit 1 and incorporated herein.

7.  

More than sixty (60) days have passed since FreshWater Accountability Project served
notice. The violations complained of in the notice have not ceased.

8.  

Venue is proper in this jurisdiction because the city of Warren’s publically owned
wastewater treatment works (the “Warren POTW”) and the Patriot Water Treatment
Facility both reside in this district, and because a substantial part of the events or
omissions giving rise to the claims occurred there. 28 U.S.C. § 1391(b)(1) & (2). Both the
Warren POTW and the Patriot Water Treatment facility reside in Trumbull County. 28
U.S.C. § 1391(c)(2). The unlawful discharges giving rise to the claims occurred at and
around the Warren POTW and the Patriot Water Treatment facility, which are both
located in Trumbull County.

9.  

Venue is proper in this judicial district because the source of the unlawful discharges are
located there. 33 U.S.C. §1365(c)(1).
PARTIES

10.  

Defendant, Patriot Water Treatment, LLC (“Patriot”), is a domestic business that was
incorporated in the State of Ohio on April 27, 2009 with the following registered office

 
  

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address: 7716 Depot Rd. Unit 1, Lisbon, OH 44432. Patriot Water Treatment, LLC’s
Ohio Department of State corporate entity number is 1853437. Patriot Water Treatment,
LLC’s principal place of business is Trumbull County, Ohio.
11.  

Patriot is the owner and operator of a Centralized Waste Treatment Facility (the “Patriot
Facility”) located at 2840 Sferra Avenue, Warren, Trumbull County, Ohio. The Patriot
Facility accepts and pretreats wastewater from oil and gas producers extracting from the
Marcellus and Utica shale using the hydraulic fracturing process, in addition to
wastewater from other industrial users. Through a single discharge stream, the Patriot
Facility then discharges this pretreated effluent to the City of Warren’s sewer system to
travel to Warren’s publicly owned wastewater treatment works for further treatment and
ultimate disposal into the Mahoning River.

12.  

Defendant City of Warren (“Warren”) is a municipality in Trumbull County, Ohio. The
City of Warren, through its Water Pollution Control Department, owns and operates a
publicly owned wastewater treatment works (“POTW”), located at 2323 Main Avenue
SW, Warren, Trumbull County, OH (the “Warren POTW”).

13.  

Warren regulates the discharge from the Patriot Facility to the Warren POTW through an
Administrative Order issued to the Patriot Facility.

14.  

Plaintiff, FreshWater Accountability Project (“FWAP”), is a nonprofit organization with
a mission to preserve freshwater supplies and other valuable natural resources through
education and community action and is dedicated to promoting health by protecting the
environment. FWAP has members who live, work, and recreate in and near Warren, OH
and who live, work, and recreate in and near the Mahoning River.

 
  

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15.  

FreshWater Accountability Project and its members have aesthetic and recreational
interests in the Mahoning River, and FWAP members reside in the vicinity of the City of
Warren’s POTW plant and the Patriot Facility. FreshWater Accountability Project’s
members have suffered injuries, are presently suffering injuries, and will continue to
suffer injuries that are directly traceable to the activities of the Warren POTW and the
Patriot Facility, and that are alleged in this Complaint. FreshWater Accountability Project
and its members have suffered, are presently suffering, and will continue to suffer, actual
and threatened injury to their health and welfare due to violations of the Clean Water Act
as described in this Complaint. FreshWater Accountability Project has members who
have stopped recreating in the area around the Warren POTW and the Mahoning River as
a result of the activities of the Warren POTW and the Patriot Facility; and whose
enjoyment of the Mahoning River, and the organisms who reside in and around it, has
diminished as a result of the Warren POTW and the Patriot Facility’s activities. Without
redress for those violations, FreshWater Accountability Project and its members will
continue to suffer injuries. Providing the relief requested in this Complaint will redress
those injuries.

16.  

FreshWater Accountability Project member Tom Smith has lived in Girard, Ohio his
entire life. Tom Smith has been a member of FWAP since 2017. Mr. Smith has
recreated in the Mahoning River since 2011 by kayaking, canoeing, and taking his small
fishing boat out on the river. Mr. Smith has specific, personal, health, environmental, and
aesthetic interests in the water quality of the Mahoning River. Mr. Smith’s full
declaration of interest is attached hereto as Exhibit 2.

 
  

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17.  

Neither the claims asserted nor the relief requested in this Complaint requires the
participation of any individual member of FreshWater Accountability Project.

18.  

The interests that FreshWater Accountability Project seeks to protect are germane to its
purpose.

STATUTORY AND REGULATORY BACKGROUND
19.  

The goal of the Clean Water Act is to “restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

20.  

The Clean Water Act prohibits the discharge of any pollutant by any person into the
navigable waters of the United States without a permit. 33 U.S.C. § 1311(a).

21.  

The Citizen Suit provision of the Clean Water Act (“CWA”) authorizes “any citizen” to
“commence a civil action on his own behalf…against any person…who is alleged to be
in violation of (A) an effluent standard or limitation under [the Act] or (B) an order
issued by an Administrator or a State with respect to such a standard or limitation.” 33
U.S.C. § 1365(a)(1).

22.  

“Effluent standard or limitation” includes a National Pollution Discharge Elimination
System Permit (“NPDES Permit”) or condition thereof pursuant to 33 U.S.C. § 1342, and
prohibitions, effluent standards, or pretreatment standards pursuant to 33 U.S.C. § 1317.
33 U.S.C. § 1365(f).

23.  

The CWA defines “person” as including corporations or municipalities. 33 U.S.C. §
1362(5).

24.  

The United States Environmental Protection Agency (“U.S. EPA”) administers the Clean
Water Act within the context of cooperative federalism. While always retaining its

 
  

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oversight role, the Agency can delegate administration of parts or all of the statute to
states.
25.  

Under section 402(b), the Administrator of the Environmental Protection Agency has
authorized the OEPA to administer various aspects of the Clean Water Act, including the
issuance of National Pollutant Discharge Elimination System (“NPDES”) permits. 33
U.S.C. § 1342(b).

26.  

Warren’s POTW NDPES Permit 3PE00008 is a permit issued under 33 U.S.C. § 1342.
Therefore, violations of Warren POTW’s NPDES permit are enforceable under the
citizen suit provision of the CWA.

27.  

Section 307 of the CWA establishes a federal pretreatment program for the regulation of
discharges from industrial facilities to publicly owned treatment works. 33 U.S.C. §
1317(b)-(e).

28.  

Section 307(d) of the Act makes it “unlawful for any owner or operator of any source to
operate any source in violation of any such effluent standard or prohibition or
pretreatment standard.” 33 U.S. C § 1317(d).

29.  

Moreover, “where specific prohibitions or limits on pollutants or pollutant parameters are
developed by a POTW in accordance with [40 C.F.R. § 403.5(C)], such limits shall be
deemed Pretreatment Standards for the purposes of Section 307(d) of the Act.” 40 C.F.R.
§ 403.5(d).

30.  

The U.S. EPA has delegated authority to implement Ohio’s pretreatment program to the
Ohio Environmental Protection Agency (“OEPA”).

 
  

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31.  

OEPA has delegated pretreatment program responsibilities to local governments, but may
also regulate industries when local authorities are unable to perform the regulatory role
effectively. Ohio Rev. Code § 3745-3-03.

32.  

The City of Warren has an OEPA-approved pretreatment program, meaning Warren has
been delegated authority to carry out Clean Water Act pretreatment program
requirements.

33.  

Warren manages its delegated pretreatment authority through local ordinances and issues
industrial user permits for significant industrial users in the form of Administrative
Orders.

34.  

Warren regulates Patriot as a Centralized Waste Treatment Facility through such an
administrative order, the most recent of which Warren issued February 28, 2017. The
Patriot Facility’s Administrative Order is attached as Exhibit 3 and incorporated herein.

35.  

A citizen suit, pursuant to 33 U.S.C. § 1365, may be maintained for violations of these
local ordinances, pretreatment Administrative Orders, and pretreatment standards under
Section 307 of the Act.
FACTUAL BACKGROUND
Permitting and Operation of the Patriot Facility

36.  

The Patriot Facility is a Centralized Waste Treatment Facility (“CWT facility”) that
accepts wastewater from oil and gas producers extracting from the Marcellus and Utica
shale using the hydraulic fracturing process, in addition to wastewater from other
industrial users.  
  

37.  

Sometime in 2010, the OEPA first issued Patriot a permit to install and operate a water
treatment facility designed to treat oil and gas waste. The permit, in conjunction with the

 
  

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Warren POTW’s NPDES Permit, allowed Patriot to discharge its waste to the Warren
POTW.
38.  

Upon information and belief, sometime in May of 2011, the OEPA determined that
disposing of oil and gas wastewater, or brine, either directly or through a publically
owned treatment works was not authorized by Ohio law. See OEPA letter dated May 16,
2011, attached as Exhibit 4 and incorporated herein.

39.  

Most publicly owned treatment works, such as Warren’s POTW, are designed to treat
pollutants found in municipally-generated wastewater, as opposed to industrial
wastewater. Wastewater from oil and gas extraction in particular contains high
concentrations of dissolved solids (or salts), as well as radioactive elements, metals,
chlorides, sulfates, and other constituents that POTWs are not designed to remove.

40.  

Accordingly, in June of 2016 the U.S. EPA issued a final rulemaking requiring that
“[t]here shall be no discharge of wastewater pollutants associated with production, field
exploration, drilling, well completion, or well treatment for unconventional oil and gas
extraction…into publicly owned treatment works.” See 40 C.F.R. § 435.33. Compliance
with this zero discharge requirement was extended by the U.S. EPA for existing sources
until August 29, 2019. 81 FR 88127.

41.  

Despite these issues and concerns, Patriot continues to discharge, and Warren continues
to accept, waste from unconventional oil and gas drilling.

42.  

Through a single discharge stream, the Patriot Facility discharges pretreated effluent to
the City of Warren’s sewer system to travel to the Warren POTW for further treatment
and ultimate disposal into the Mahoning River.

 
  

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43.  

Segments of the Mahoning River are currently designated as impaired for aquatic life,
with major municipal point sources listed among the sources of impairment.

44.  

The Patriot Facility is regulated by two OEPA issued permits-to-install (PTI 816662 and
PTI 748163) and an Industrial User Pretreatment Permit in the form of an Administrative
Order issued by the City of Warren’s Water Pollution Control Department. PTI 816662
and PTI 748163 are attached as Exhibit 5 and Exhibit 6, respectively, and incorporated
herein.

45.  

Despite the fact that Patriot is authorized to accept and discharge both industrial and oil
and gas waste, there is one discharge waste stream from the Patriot Facility.

46.  

Prior to March 2017, there were two Administrative Orders governing the single
discharge from the Patriot Facility: an Administrative Order issued April 20, 2011 for oil
and gas wastewater and an Administrative Order issued March 12, 2015 for other
wastewaters. The April 20, 2011 Administrative Order regulated the oil and gas
wastewater using limits based on 40 CFR 437, subpart C, the Organics Treatment and
Recovery Subpart of the national pretreatment categorical standards for CWT facilities.
The March 12, 2015 Administrative Order regulated other industrial wastewater under
Warren’s local limits established in ordinance and contained none of the pretreatment
categorical standards for CWT facilities in 40 CFR 437.

47.  

Beginning in March 2017, discharge from the Patriot Facility is regulated by a single
Administrative Order issued February 28, 2017. The February 28, 2017 Administrative
Order contains limits based on 40 CFR 437, subpart A, the Metals Treatment and
Recovery Subpart of the pretreatment categorical standards for CWT facilities.

 
  

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48.  

Hydraulic fracturing wastewater is known to have high levels of Total Dissolved Solids
(“TDS”), Total Suspended Solids (“TSS”), radionuclides, organic compounds, and heavy
metals.

49.  

High concentrations of TSS, TDS, and chloride have been found in drinking water
sources downstream of discharging facilities that accept hydraulic fracturing wastewater,
and effluent from CWTs accepting hydraulic fracturing wastewater has been found to
contain elevated bromide and radium concentrations.

50.  

Bromide can combine with naturally occurring organic matter to form disinfection byproducts (“DBPs”) called trihalomethanes, which are associated with liver, kidney, and
nervous system problems.

51.  

Patriot’s current Administrative Order contains a limit of 50,000 mg/L for TDS for the
Patriot Facility’s oil and gas flow. This same limit also exists in Patriot’s PTI 748163.

52.  

Despite Patriot having one discharge stream to the Warren sewer, Patriot’s Industrial
flow is regulated under a separate portion of its Administrative Order, which provides no
limit for TDS.

53.  

Due to the naturally occurring radionuclides widely distributed in the earth’s crust,
hydraulic fracturing often produces some radioactive waste. Waste from the Marcellus
shale in particular is known to have high uranium content and particularly high levels of
radium-226. Radium-226 has a half-life of 1,622 years, so if it is dispersed in the
environment, it can persist for a long period of time.

54.  

The radiological components of wastewater from hydraulic fracturing present problems
for even the most advanced treatment facilities, and any residual wastes that are created
may have gamma radiation emissions greater than background levels in the environment.

 
  

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55.  

Despite the knowledge of the unique implications of treating hydraulic fracturing
wastewater, neither Patriot’s Administrative Order nor Warren POTW’s NPDES permit
contains limitations for chloride, bromide, or radium.

56.  

Patriot’s Administrative Order and Warren’s Local Ordinance 924.03 contain a provision
prohibiting the discharge of “any wastewater containing any radioactive wastes or
isotopes of such half-life or concentration, which exceeds limits established by [Warren]
in compliance with State or Federal regulations.” However, Patriot’s Administrative
Order does not require monitoring or contain limits for radium-226 or radium-228.

57.  

Barium is one of the most abundant inorganic chemicals in drilling fluids and produced
waters from some locations and can be naturally occurring or is most-often added
intentionally to drilling fluids as a weighting agent due to its high density and low
aqueous solubility. Wastewater from the hydraulic fracturing process is known to have
high concentrations of barium.

58.  

Patriot’s Administrative Order contains no limit for barium.

59.  

Publicly available Monthly Compliance Reports submitted by Patriot to Warren
document that Patriot has repeatedly exceeded standards in its Administrative Order for
Zinc, Molybdenum, Ammonia, Chemical Oxygen Demand (“COD”), TSS, and TDS.
Permitting and Operation of the Warren POTW

60.  

Discharge from the Warren POTW to the Mahoning River is governed by Warren’s
NPDES permit 3PE00008, attached as Exhibit 7 and incorporated herein.

61.  

The Warren POTW has been in significant non-compliance with the TSS limit in its
NPDES permit for at least a year, and continues to be in significant non-compliance with
this limit.

 
  

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62.  

On June 7, 2017 the OEPA issued Warren a NOV for violating the TSS standards in its
NPDES permit during the months of January 2017, February 2017, and March 2017, and
stating that Warren is in significant noncompliance for TSS as a result of these
exceedences. The NOV also cited the Warren POTW for violations of its reporting and
sampling requirements for Dissolved Orthophosphate for April 2017. The June 7, 2017
notice is attached as Exhibit 8 and incorporated herein.

63.  

Warren has identified the Patriot Facility as one source contributing to the Warren POTW
consistently exceeding the TSS limits found in its NPDES permit.

64.  

Publically available Monthly Compliance Reports submitted by Patriot to Warren
document consistently high levels of TDS contained in Patriot’s effluent received by
Warren.

65.  

Discharge from the Patriot Facility to the Warren POTW containing high levels of TDS
interferes with the Warren POTW’s ability to process its sludge.

66.  

Upon information and belief, Patriot’s discharge contains higher TDS levels when Patriot
is processing wastewater from hydraulic fracturing operations, and in turn, the Warren
POTW experiences pass through and/or interference with its operations when Patriot is
discharging effluent from processing hydraulic fracturing wastewater.

67.  

Publicly available discharge monitoring reports demonstrate that Warren has been in
significant noncompliance with its Barium preliminary effluent limit since at least 2012.

68.  

March 20, 2015, the OEPA issued Warren a NOV for violating the barium standards in
its NPDES permit. The NOV cites Warren for consistently exceeding its barium
preliminary effluent limit, failing to report exceedences of that limit, failing to reduce the
effluent concentration, and failing to request a compliance schedule. The NOV explains

 
  

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that the barium standards are designed to prevent violations of the water quality standard
for barium, which is based on the chronic in-stream concentrations that adversely affect
aquatic life. The March 20, 2015 NOV is attached as Exhibit 9 and incorporated herein.
69.  

Warren has identified Patriot Water Treatment, LLC as one source of its Barium
exceedance problem, and publicly available Monthly Compliance Reports submitted by
Patriot to Warren document consistently high levels of Barium contained in Patriot’s
effluent.

70.  

Despite accepting and discharging pretreated oil and gas wastewater, Warren POTW’s
NPDES permit contains no TDS limit, and no limits or monitoring requirements for
radium-226 or radium-228.
Warren’s Regulation of the Patriot Facility

71.  

Following OEPA’s 2015 Pretreatment Audit Inspection of Warren’s industrial
pretreatment program, in a letter dated June 2, 2015, OEPA informed Warren that it was
incorrectly regulating the Patriot Facility by regulating the Patriot Facility’s single
discharge stream through two Administrative Orders, one that applied to oil and gas
wastewater and one that applied to other wastewater. The Administrative Order that
applied to oil and gas water included limits based on 40 CFR 437 Subpart C, the
Organics Treatment and Recovery Subpart of the national pretreatment categorical
standards for CWT facilities. The Administrative Order that applied to other wastewater
contained no 40 CFR 437 limits. The letter instructed Warren that it must immediately
issue to Patriot an Administrative Order that regulates all of the Patriot Facility’s
discharge under 40 CFR 437.16, the Metals Treatment and Recovery Subpart of the

 
  

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national pretreatment categorical standards for CWT facilities. The June 2, 2015 letter is
attached as Exhibit 10 and incorporated herein.
72.  

December 21, 2016 the OEPA issued Warren a Notice of Violation (“NOV”) for
violating Part II.BB.5 of its NPDES Permit 3PE00008, which requires Warren to issue
control mechanisms to significant industrial users that contain effluent limits based on
applicable pretreatment standards, including pretreatment categorical standards. The
NOV was for Warren’s failure to issue one Administrative Order governing the Patriot
Facility’s single discharge using the limits established under 40 CFR 437 Subpart A,
Metals Treatment. The December 21, 2016 NOV is attached as Exhibit 11 and
incorporated herein.

73.  

On February 28, 2017, Warren issued an Administrative Order to Patriot applying 40
CFR 437 Subpart A, Metals Treatment effluent limits to Patriot’s entire discharge stream.

74.  

The February 28, 2017 Administrative Order provides two sets of regulations for
Patriot’s single discharge stream. One sets a limit of 50,000 mg/L for TDS for the Patriot
Facility’s oil and gas flow. The other sets no limit for TDS for Patriot’s industrial flow.

75.  

Warren has issued Patriot Notifications of Non-compliance regarding Patriot’s failure to
meet its reporting requirements on at least three occasions, including June 27, 2016, July
29, 2013, and June 3, 2013. These notifications of non-compliance are attached as
Exhibit 12 and incorporated herein.

76.  

Warren issued Patriot a Notification of Non-compliance on April 6, 2015, for
exceedences of copper, zinc, and lead standards contained in its Administrative Order and
local ordinances. These exceedances of copper, zinc, and lead standards occurred on
February 26, 2015 and an additional exceedance for copper occurred on March 10, 2015.

 
  

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77.  

Warren issued Patriot a Notification of Non-compliance on July 12, 2016 for violating
the limit for zinc contained in its Administrative Order and local ordinances on June 14,
2016.

78.  

Warren issued Patriot a Notification of Non-compliance on October 3, 2016 for violating
the limit for zinc contained in its Administrative Order and local ordinances on August
24, 2016.

79.  

Warren issued Patriot a Notification of Non-compliance on October 13, 2016 for
violating the limit for zinc contained in its Administrative Order and local ordinances on
September 27, 2016.

80.  

April 6, 2015; July 12, 2016; October 3, 2016;and October 13, 2016 notifications of Noncompliance are attached as Exhibit 13 and incorporated herein.
The Alleged Violations are Continuing

81.  

The violations alleged in this Complaint have occurred, are continuing, and will continue
unless the relief requested is granted.

82.  

The violations alleged in this Complaint are continuous, or they are intermittent or
sporadic and have a continuing likelihood of recurrence.

83.  

Patriot and Warren, having sole access to many available records and information
regarding Warren POTW’s operation and efficiency and Patriot’s effluent, are in the best
position to determine the precise number of violation events.

No Action Taken by the State of Ohio or the U.S. EPA Statutorily Precludes this Citizen Suit
84.  

The Clean Water Act provides that a citizen suit claim brought under 33 U.S.C. 1365(a)
may be precluded if “the Administrator or State has commenced and is diligently
prosecuting a civil or criminal action in a court of the United States, or a State to require

 
  

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compliance with the standard, limitation, or order [that the plaintiff in the citizen suit
alleges was violated].” 33 U.S.C. 1365(b)(2).
85.  

Neither the State of Ohio nor the U.S. EPA has commenced a civil action to address the
violations described in this Complaint.
Consequences of the Defendants’ Unlawful Actions

86.  

The Defendants’ effluent discharges are endangering the health, safety, and welfare of the
public and the environment, including the Plaintiff and its members.

87.  

Patriot’s violations of reporting requirements prevent accurate measurements of
compliance and enforcement of effluent limitations and water quality standards designed
to protect human health and the environment.

88.  

Warren’s violations of its NPDES permit, including its failure to establish adequate
control mechanisms for the Patriot Facility and set local limits for Barium, prevent
accurate measurements of compliance and enforcement of effluent limitations and water
quality standards designed to protect human health and the environment.

89.  

Total Suspended Solids (“TSS”) is a measurement of the total amount of organic and
inorganic particles dispersed in water. Excessive amounts of TSS in a surface waterbody
can constitute a major ecosystem stressor by negatively affecting biota directly and by
negatively impacting important habitat. High levels of TSS in surface water can
negatively impact fish populations, making fish unable to see or feed properly, clogging
their gills, and suffocating their eggs and larvae. This can lead to an overall decrease in
the health of fish populations, and some populations may be severely impacted by even
small increases in TSS concentrations. Excessive TSS can also have detrimental impacts
on aquatic invertebrates through clogging their filtration mechanisms, hindering

 
  

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respiration and ingestion, and causing changes in light attenuation that can reduce feeding
efficiency, and in some cases leading to death. Even small increases in TSS levels can
negatively impact the growth and reproduction of some freshwater mussel species,
including many of the endangered freshwater mussel species. Higher TSS levels can also
serve as carriers of toxics, which cling to suspended particles.
90.  

Total Dissolved Solids “TDS” is a measurement of inorganic salts, organic matter, and
other dissolved materials in water. TDS can cause toxicity by increasing salinity and
changing ionic composition of the water and toxicity of individual ions, which has been
shown to limit biodiversity and cause acute and chronic effects in biota. High TDS levels
in drinking water sources have also been shown to lead to elevated disinfection byproduct
levels in drinking water systems, including elevated levels of total trihalomethanes which
can have public health impacts. Limits on TDS are also effective at reducing bromide
levels.

91.  

Radium can readily precipitate with barium salts, which may result in radiation being
released into the environment.

92.  

Zinc is a heavy metal and one of the 129 priority pollutants identified by the U.S.
Environmental Protection Agency. Elevated concentrations of zinc in water are toxic to
many species of algae, crustaceans, and salmonids, with the impacts being especially
strong to molluscs, crustaceans, odonates, and ephemeropterans. Zinc contamination in
streams can also lead to fish kills and negative physiological impacts on surviving fish
populations. Excess Zinc in mammals can cause copper deficiencies and affect iron
metabolism. Zinc is also a known human skin irritant.

 
  

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93.  

Molybdenum is a heavy metal that dissolves at a high pH. Elevated Molybdenum can
have negative impacts on the kidneys and liver of mammals and has been found to cause
acute toxicity and death in cattle and sheep, with cattle being particularly susceptible to
toxicity. Studies have associated elevated levels of molybdenum with a form of lowerlimb osteoporosis and a gout-like disease in humans. A two-year study of the impact of
molybdenum in drinking water on humans determined 0.2 mg/L to be the no-observedadverse-effect-level for molybdenum in drinking water, from which the World Health
Organization has estimated a health-based limit of 0.07 mg/L.

94.  

High levels of ammonia in water can lead to toxic buildup in the blood and tissues of
aquatic organisms, potentially leading to death. For the protection of aquatic life, U.S.
EPA has established ambient water criteria for ammonia in freshwater of 17 mg TAN/L
at pH 7 and 20°C.

95.  

Chemical Oxygen Demand (“COD”) is an indicator of the amount of dissolved oxygen
that will be needed by microorganisms in the receiving stream to degrade the organic,
and some inorganic, compounds in the effluent. COD is an indirect indicator of the
organic compound pollutants of wastewater effluent. 
   The discharge of effluent
containing high levels of COD into a stream or river accelerates bacterial growth in the
river, consuming, and in turn, reducing the oxygen levels in the river. This can lead to
the diminishing of oxygen levels in the river that are lethal for aquatic fish and insects.

96.  

Carbonaceous Biochemical Oxygen Demand (“CBOD”) measures the potential of
wastewater to deplete the oxygen level of receiving streams. CBOD is used to determine
the extent to which a waste stream will contaminate a receiving stream by depriving the
organisms in the stream of oxygen.

 
  

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97.  

E. Coli are a type of fecal coliform bacteria found in the intestines of animals and
humans. Exposure to water contaminated with E. Coli bacteria can result in
gastrointestinal tract infection, including nausea, vomiting, diarrhea, and fever. High E.
Coli levels are a strong indication of fecal pollution, which can pose serious health threats
to those exposed to the contaminated water. In addition to gastrointestinal infection,
humans exposed to fecal pollution may suffer eye infections, skin infections, respiratory
illness, and ear, nose, and throat infections. The presence of E. Coli can also be
indicative of the presence of other pathogens, such as viruses and protozoa, that are
harmful to human health.
VIOLATIONS OF THE CLEAN WATER ACT BY DEFENDANT PATRIOT

COUNT ONE
Patriot’s Discharge of Pollutants in Excess of the Numeric Effluent Limitations Contained in its
Administrative Order, Local Ordinances, and National Pretreatment Categorical Limits
98.  

Plaintiff realleges and incorporates by reference herein all above allegations and
aforementioned exhibits.

99.  

Patriot’s Administrative Order and Warren’s local ordinance 924.06 sets an effluent
limitation for zinc of 1.210 mg/L for the daily maximum. Patriot violated this limitation
on, but not limited to, the following dates:

Date
Feb. 26, 2015
Jun. 14, 2016
Aug. 24, 2016
September 27, 2016

 
  

Reading (mg/L)
1.300
4.150
2.920
7.870

20

Limit (mg/L)
1.2010
1.210
1.210
1.210

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100.   Patriot’s Administrative Order and Warren’s local ordinance 924.04 sets 0.699 mg/L as
the daily maximum for molybdenum. Patriot exceeded this value on, but not limited to,
the following dates:
Date
May 26, 2016
Jun. 30, 2016
Aug. 24, 2016
Sept. 27, 2016

Reading (mg/L)
1.59
3.02
0.87
1.17

Limit (mg/L)
0.699
0.699
0.699
0.699

101.   Patriot’s Administrative Order and Warren’s local ordinance 924.06 sets 35 mg/L as the
daily maximum for Ammonia. Patriot exceeded this value on, but not limited to, the
following dates:
Date
Jul. 21, 2014
Aug. 11, 2014
Sept. 16, 2014
Feb. 26, 2015
May 19, 2015
June 9, 2015
June 24, 2015
Sept. 15, 2015
Nov. 26, 2015
Jan. 29, 2016
Feb. 26, 2016
Mar. 18, 2016
Apr. 29, 2016
May 26, 2016
Jun. 30, 2016
Sept. 27, 2016
Nov. 21, 2016

Reading (mg/L)
43
91
104
134
51.5
81.9
52.0
63.9
38.9
42.7
50.8
45.4
107
97.8
42.6
59.3
58.8

Limit (mg/L)
35
35
35
35
35
35
35
35
35
35
35
35
35
35
35
35
35

102.   Patriot’s Administrative Order and Warren’s local ordinance 924.06 sets an effluent
limitation for COD of 600 mg/L for the daily maximum. Patriot exceeded this value on,
but not limited to the following dates:

 
  

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Date
May 20, 2014
Jun. 24, 2014
Jul. 21, 2014
Aug. 11, 2014
Sept. 16, 2014
October 28, 2010
November 21, 2014
Dec. 14, 2014
Jan. 9, 2015
Feb. 26, 2015
Mar. 18, 2015

Reading (mg/L)
1900
2340
1720
1900
5460
1220
1370
774
840
7120
1900

Limit (mg/L)
600
600
600
600
600
600
600
600
600
600
600

Apr. 28, 2015
May 19, 2015
June 9, 2015
June 24, 2015
July 23, 2015
Aug. 26, 2015
Sept. 15, 2015
Oct. 23, 2015
Oct. 30, 2015
Nov. 26, 2015
Dec. 22, 2015
Jan 29, 2016
Feb. 26, 2016
Mar. 18, 2016
Apr. 29, 2016
May 26, 2016
Jun. 30, 2016
Aug. 24, 2016
Sept. 27, 2016
Oct. 25, 2016
Nov. 21, 2016

1550
2740
4090
2650
1720
1020
2450
1900
1770
2450
1390
1680
2230
8130
884
5350
2940
1410
7510
2830
5530

600
600
600
600
600
600
600
600
600
600
600
600
600
600
600
600
600
600
600
600
600

103.   Patriot’s Administrative Order and Warren’s local ordinance 924.06 sets 60 mg/L as the
allowable daily maximum for Total Suspended Solids (“TSS”). Patriot exceeded this
limit on, but not limited to, the following dates:

 
  

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Date
May 20, 2014
Jun. 24, 2014
Aug. 11, 2014
Sept. 16, 2014
Oct. 28, 2016
Dec. 14, 2014
Feb. 26, 2015
Mar. 18, 2015
Apr. 28, 2015
May 19, 2015
Jun. 9, 2015
Jun. 24, 2015
Jul. 23, 2015
Aug. 26, 2015
Sept. 15, 2015
Oct. 23, 2015
Oct. 30, 2015
Nov. 26, 2015
Dec. 22, 2016
Jan 29, 2016
Mar. 18, 2016
Apr. 29, 2016
May 26, 2016
Jun. 30, 2016
Aug. 24, 2016
Sept. 28, 2016
Nov. 21, 2016

Reading (mg/L)
86
80
169
278
69
167
376
472
176
321
436
111
268
170
101
343
101
73
169
97
240
126
512
264
72
375
230

Limit (mg/L)
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60
60

104.   Patriot’s Administrative Order and Warren’s local ordinance sets 1500 mg/L as the daily
maximum for Total Dissolved Solids (“TDS”). Patriot exceeded this value on, but not
limited to, the following dates:
Date
May 20, 2014
Jun. 24, 2014
Jul. 21, 2014
Aug. 11, 2014
Sept. 16, 2014
Oct. 28, 2016
November 21, 2014
Dec. 14, 2014
Jan. 9, 2015

 
  

Reading (mg/L)
30,200
12,000
38,800
33,700
50,000
16,200
32,000
20,900
10,700

23

Limit (mg/L)
1500
1500
1500
1500
1500
1500
1500
1500
1500

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Feb. 26, 2015
Mar. 18, 2015
Apr. 28, 2015
May 19, 2015
June 9, 2015
June 24, 2015
July 23, 2015
Aug. 26, 2015
Sept. 15, 2015
Oct. 23, 2015
Oct. 30, 2015
Nov. 26, 2015
Dec. 22, 2016
Jan 29, 2016
Feb. 26, 2016
Mar. 18, 2016
Apr. 29, 2016
May 26, 2016
June 30, 2016
July 27, 2016
August 24, 2016
September 28, 2016
October 25, 2016
November 22, 2016

102,000
33,600
27,000
40,400
99,600
12, 100
40,000
25,100
55,200
39,900
27,800
49,200
38,900
50,800
65,300
48,200
95, 300
51,200
11,100
16,000
12,100
19,500
4,110
10,500

1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500
1500

  

105.   These violations of the numeric effluent limitations contained in the Patriot Facility’s
Administrative Order, Warren’s Local Ordinances, and national pretreatment categorical
limits are violations of the Clean Water Act.
106.   Discharging these pollutants to the Warren sewer at levels exceeding pretreatment
standards may be harmful to human health and the environment, especially the aquatic
life of the Mahoning River.
COUNT TWO
Patriot’s Interference and/or Pass Through Violations
107.   Plaintiff realleges and incorporates by reference herein all above allegations and
aforementioned exhibits.
 
  

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108.   40 C.F.R. § 403.5 states that “a User may not introduce into a POTW any pollutant(s)
which cause Pass Through or Interference,” where:
Interference means a discharge which, alone or in conjunction with a discharge or
discharges from other sources, both: (1) Inhibits or disrupts the POTW, its treatment
processes or operations, or its sludge processes, use, or disposal; and (2) Therefore is the
cause of a violation of any requirement of the POTW’s NPDES permit (including an
increasing in the magnitude or duration of a violation).
109.   Warren Ordinance 924.03 and Patriot’s Administrative Order prohibit the discharge of
any toxic substances, chemical elements or compounds in quantities sufficient to impair
the operation or efficiency of the sewage treatment plant or that will pass through the
sewage treatment plant and cause the effluent thereof to exceed NPDES permit limits.
110.   Both of Patriot’s OEPA-issued permits-to-install, PTI 816662 and PTI 748163, state that
“[a]ll wastewater discharges that will adversely affect the operation, maintenance, or
treatment capabilities of the Warren sewer and/or wastewater treatment systems are
prohibited.”
111.   Patriot has violated Section 3, Subpart D of its Administrative Order, its permits-to-install
(PTI 816662 and PTI 748163), Warren Ordinance 924.03, and 40 C.F.R. § 403.5 by the
high level of Barium it sends to Warren that has caused Warren to repeatedly violate the
preliminary effluent standard in Part II.AA of its NPDES permit.
112.   Patriot has caused or contributed to the Warren POTW violating its preliminary effluent
standard for Barium, contained in Part II.AA of its NPDES permit, on at least 55
occasions since July 17, 2012.

 
  

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113.   Each time Patriot has caused Warren POTW to violate its Barium preliminary effluent
standard amounts to a violation of its Administrative Order, Warren Ordinance 924.03,
and 40 C.F.R. § 403.5.
114.   Patriot’s discharge of high levels of TDS and TSS into Warren’s sewer, repeatedly at
levels exceeding those permitted in its Administrative Order, have caused Warren to
violate the standards in its NPDES permit.
115.   Patriot has caused or contributed to Warren being in significant non-compliance with the
TSS limit in its NPDES permit for at least a year.
116.   The Patriot Facility is the primary source of Warren POTW’s state of significant noncompliance with the TSS standards contained in its NPDES permit, and Patriot’s
acceptance of waste from hydraulic fracturing operations in particular contributes to this
problem of noncompliance.
117.   Each instance that Warren has exceeded the TSS limit in its NPDES Permit as a result of
high TDS and TSS levels discharging from the Patriot Facility, including the ten
violations described in Count Four of this Complaint, constitutes a violation of the Clean
Water Act by Patriot.
118.   Warren POTW continues to be in significant non-compliance with the TSS limit in its
NPDES permit, and this state of non-compliance is expected to continue so long as
Patriot continues to discharge effluent containing high levels of TSS and TDS to the
Warren POTW.
119.   Warren POTW’s ability to process sludge is impaired and made less efficient as a result
of the high concentrations of TDS it receives from Patriot.

 
  

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120.   Therefore, Patriot’s current discharge of effluent containing high levels of TDS amounts
to “discharg[ing], or causing to be discharge[ed]… toxic substances, chemical elements
or compounds in quantities sufficient to impair the operation or efficiency of the sewage
treatment plant,” in violation of Warren Ordinance 924.03 and Patriot’s Administrative
Order, and therefore the Pretreatment Standards of the Clean Water Act.
121.   Patriot’s discharge of high-TDS effluent also constitutes “wastewater discharges that will
adversely affect the operation, maintenance, or treatment capabilities of the
Warren…wastewater treatment systems,” which is prohibited by Patriot’s permits-toinstall, PTI 816662 and PTI 748163.
122.   These violations of Patriot’s Administrative Order, its permits-to-install (PTI 816662 and
PTI 748163), and Warren Ordinance 924.03 are violations of the Clean Water Act.
123.   By impairing Warren’s processing abilities and causing or contributing to Warren
discharging pollutants in excess of the effluent limitations contained in its NPDES
permit, Patriot’s discharge may be harmful to human health and the environment,
especially the aquatic life in the Mahoning River.
COUNT THREE
Patriot’s Failure to Meet Reporting Requirements
124.   Plaintiff realleges and incorporates by reference herein all above allegations and
aforementioned exhibits.
125.   Section 4 of Patriot’s Administrative Order requires Patriot to conduct self-monitoring of
the pollutants listed in Section 1 of its Administrative Order, and to submit its results to
Warren by the 25th of each month. If results indicate a violation of pretreatment
standards, Patriot is to notify Warren within 24 hours of becoming aware of the violation.
Patriot is also required to notify Warren upon first awareness of any accidental discharge

 
  

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that could cause problems to the POTW or violate any prohibited discharge standard.
Within 5 days of such an occurrence, Patriot must provide formal written notification to
Warren discussing the circumstances of the event and remedial measures.
126.   Patriot violated its compliance reporting requirements in its Administrative order and
Warren’s Ordinance No. 10235/91 on at least the following occasions: April 2013; June
2013; and May 25, 2016.
127.   Patriot also violated its reporting requirements each time it discharged to Warren’s sewer
in such a manner that resulted in Warren POTW violating its NPDES permit or that
impaired Warren POTW’s operation or efficiency and did not provide Warren with
formal notification discussing the circumstances of the occurrence and remedial
measures. This includes at least the violations described in Count Three of this
Complaint.
128.   Each of Patriot’s failures to meet its reporting requirements constitutes a violation of the
Clean Water Act.
VIOLATIONS OF THE CLEAN WATER ACT BY DEFENDANT WARREN
COUNT FOUR
Warren’s Discharge of Pollutants in Excess of the Numeric Effluent Limitations Contained in its
NPDES Permit 3PE00008
129.   Plaintiff realleges and incorporates by reference herein all above allegations and
aforementioned exhibits.
130.   Warren POTW’s NDPES Permit 3PE00008 contains an average weekly concentration
limit for TSS of 30 mg/L and a weekly loading limit of 1817 kg/day. Warren’s NPDES
permit defines “average weekly” discharge limitations as “the highest allowable average
of ‘daily discharges’ over a week, divided by the number of daily discharges measured

 
  

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during that week,” where Week 1 is days 1-7 of the month, Week 2 is days 8-14, Week 3
is days 15-21, and Week 4 is days 22-28.  Warren POTW violated these terms in the
months of January 2017, February 2017, and March 2017, and on at least the following
dates:
Date

June
15-21,
2015
Nov. 814,
2015
Dec.
22-28,
2015
Mar.
25-31,
2015
Apr. 814,
2016

Reading (mg/L) Reading
weekly
(kg/day
concentration
)
weekly
loading
38
4615

Reading (kg/day)
monthly loading

Limit (mg/l) Limit
weekly
(kg/day)
concentration weekly
loading

Limit (kg/day)
Monthly loading

1874

30

1817

1211

30

1817

1211

226

30

1817

1211

51

30

1817

1211

136

30

1817

1211

43

2194

131.   Warren POTW’s NDPES Permit 3PE00008 sets a Dissolved Oxygen standard of a
minimum level of Dissolved Oxygen of 5.0 mg/L. Warren POTW violated this permit
standard on at least the following dates:
Date
Oct. 28, 2015
Apr. 11, 2016

Reading (mg/L)
2.3
4.9

Limit (min.) (mg/L)
5.0 (min.)
5.0 (min)

132.   Warren POTW’s NDPES Permit 3PE00008 sets a weekly limit for COBD of 18 mg/L.
Warren POTW violated this permit standard on at least the following dates:
Date
 
  

Reading (mg/L) weekly
29

Limit (mg/L) weekly

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Dec. 23, 2015
Apr. 12, 2016

47
50

18
18

133.   Warren POTW’s NDPES Permit 3PE00008 sets a standard of a weekly average limit for
E. Coli to be calculated as a measurement of 284 cfu/ml. Warren POTW violated this
permit standard on at least the following dates:
Date
May 7, 2014
May 8, 2014
May 13, 2014
May 14, 2014
May 15, 2014
Jun. 3, 2014
Jun. 17, 2014
Jun. 19, 2014
Jun. 24, 2014
Jun. 25, 2014
Jul. 15, 2014
Aug 5, 2014
Aug 12, 2014
Aug 13, 2014
Aug 20, 2014
Aug 21, 2014
Sept. 8, 2014
Sept. 11, 2014
Oct. 21, 2014
May 28, 2015
Jun. 1, 2015
Jun. 15, 2015
Jun. 16, 2015
Jun. 17, 2015
Jun. 18, 2015
Jun. 24, 2015
Jun. 29, 2015
Oct. 28, 2015
Oct. 29, 2015
May 16, 2016
Jul. 18, 2016
Oct. 3, 2016
Oct. 20, 2016

 
  

Reading (cfu/ml) weekly
1220
1100
1290
3200
2900
800
700
AK
AK
AK
AK
290
AK
AK
AK
3100
450
680
400
1140
3040
46000
3800
7375
350
675
4425
1300
730
5000
AK
767
2200

30

Limit (cfu/ml) weekly
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284
284

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COUNT FIVE
Warren’s Violation of its Barium Preliminary Effluent Limit
134.   Plaintiff realleges and incorporates by reference herein all above allegations and
aforementioned exhibits.
135.   Part II.AA of the Warren POTW’s NPDES permit contains a preliminary effluent limit
(“PEL”) for barium of 340 ug/L. This standard is the wasteload allocation for the Warren
POTW based on the water quality standards for the Mahoning River.
136.   The Warren POTW’s NPDES permit requires Warren to give written notification to the
Northeast District OEPA office upon any effluent concentration sample result greater
than the PEL.
137.   The Warren POTW’s NPDES permit states that if the 30-day average for barium is
greater than the average PEL for two or more months during a consecutive six-month
period, the permittee must reduce discharge levels to below the PEL.
138.   If the Warren POTW is unable to reduce the barium levels below the PEL within six
months after the aforementioned condition has been met, Warren POTW is allowed to
request to modify its NPDES permit to contain a compliance schedule for barium, which
must include justification for the additional time necessary to reduce barium discharge
levels.
139.   The Warren POTW has exceeded its barium PEL on at least 55 occasions, regularly for a
period of two or more months during a six-month period.
140.   At no point has Warren submitted to OEPA a request to modify its NPDES permit to
contain a compliance schedule for barium.

 
  

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141.   Each exceedance of the Warren POTW’s barium PEL after it exceeded its limitation
twice in July and August of 2012 without requesting a compliance schedule, constitutes a
violation of a condition of its NPDES permit, and thus a violation of the Clean Water
Act, enforceable under the Act’s citizen suit provision.
142.   The Warren POTW has exceeded the preliminary effluent standard for barium contained
in its NPDES permit on at least the following occasions:
Date
Jul. 17, 2012
Aug. 7, 2012
Aug. 21, 2012
Sept. 18, 2012
Oct. 2, 2012
Oct.16, 2012
Oct. 29, 2012
Nov. 6, 2012
Nov. 19, 2012
Mar. 5, 2013
Apr. 16, 2013
Apr. 30, 2013
May 21, 2013
Jun. 18, 2013
Sept. 16, 2013
Oct. 22, 2013
Dec. 17, 2013
Dec. 30, 2013
Mar. 18, 2014
Aug. 5, 2014
Sept. 23, 2014
Oct. 21, 2014
Dec. 30, 2014
Jan. 6, 2015
Feb. 17, 2015
Mar. 3, 2015
Apr. 21, 2015
May 5, 2015
May 19, 2015
Jun. 2, 2015
Jun. 7, 2015
Jun. 16, 2015
 
  

Reading (ug/L)
411
374
1170
1660
773
875
706
676
1190
662
400
532
918
1070
386
451
354
552
585
1030
600
786
1220
400
679
1810
2180
2900
1300
380
547
5620
32

Limit (ug/L)
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340

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Jun. 22, 2015
Jun. 29, 2015
Jun. 30, 2015
Jul. 6 , 2015
Jul. 7, 2015
Jul. 21, 2015
Sept. 1, 2015
Sept. 9, 2015
Sept. 22, 2015
Oct. 6, 2015
Oct. 20, 2015
Nov. 4, 2015
Nov. 17, 2015
Dec. 2, 2015
Dec. 15, 2015
Jan. 5, 2016
Febr. 2, 2016
Mar. 2, 2016
Mar. 15, 2016
Apr. 19, 2016
May 3, 2016
May 17, 2016
Jun. 2, 2016

1640
1980
1340
1240
1270
498
868
459
1370
716
660
619
2540
6350
3830
521
540
711
916
1010
1490
827
603

340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340
340

COUNT SIX
Warren’s Failure to Issue Adequate Control Mechanisms to Regulate TDS Levels from Patriot
143.   Plaintiff realleges and incorporates by reference all above allegations and aforementioned
exhibits.
144.   Warren’s NPDES permit 3PE00008 Part II.BB.5 requires Warren to “issue control
mechanisms to all industries determined to be Significant Industrial Users as defined in
OAC 3745-3-01(FF),” and states that “[c]ontrol mechanisms must meet at least the
minimum requirements of OAC-3745-3-03(C)(1)(c).”
145.   By its incorporation of OAC-3745-3-03(C)(1)(c), Warren’s NPDES permit 3PE00008
requires Warren to “[i]ssue control mechanisms to control each industrial user’s

 
  

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contribution to the POTW to ensure compliance with applicable pretreatment standards
and requirements.”
146.   Warren’s current administrative order for Patriot fails to meet this requirement in that it
fails to ensure Patriot’s compliance with its TDS standard for its Oil and Gas flow.
147.   There is one discharge stream from the Patriot Facility into the Warren sewer, yet
Warren’s Administrative Order for Patriot regulates Patriot’s Oil and Gas flow and
Patriot’s Industrial flow as two separate discharge streams, where Patriot’s Oil and Gas
flow is subject to a maximum strength of TDS of 50,000 mg/L and Patriot’s Industrial
flow has no limitation on TDS strength.
148.   Patriot’s discharge of effluent containing high-TDS levels has impaired the operation and
efficiency of the Warren POTW and caused the Warren POTW to be in an ongoing state
of significant noncompliance with its NPDES permit.
149.   The lack of an adequate control mechanism has led to Patriot’s discharge of high-TDS
effluent to the Warren POTW at levels that have impaired the operation and treatment
capabilities of the Warren POTW and resulted in illegal discharges by the Warren POTW
into the Mahoning River.
150.   As such, Warren is operating in violation of Part II.BB.5 of its NPDES permit 3PE00008
and the Clean Water Act.
COUNT SEVEN
Warren’s Administrative Order Issued to Patriot Does Not Adequately Regulate or Monitor
Radionuclides
151.   Plaintiff realleges and incorporates by reference all above allegations and all
aforementioned exhibits.

 
  

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152.   Warren Local Ordinance 924.03, a component of Warren’s OEPA approved pretreatment
program, prohibits the discharge into Warren’s public sewer of “any wastewater
containing any radioactive wastes or isotopes of such halflife or concentration which
exceeds limits established by the City in compliance with applicable state or federal
regulations.”
153.   Despite this pretreatment standard, the Administrative Order Warren has issued to Patriot
contains no requirement for radiological monitoring to ensure the pretreatment standard
is met.
154.   By its incorporation of OAC-3745-3-03(C)(1)(c), Warren’s NPDES permit 3PE00008
requires Warren to “[i]ssue control mechanisms to control each industrial user’s
contribution to the POTW to ensure compliance with applicable pretreatment standards
and requirements.”
155.   Warren’s failure to include requirements for monitoring of radionuclides in Patriot’s
Administrative Order is a violation of this provision of Warren’s NPDES permit, and in
turn of the Clean Water Act.
COUNT EIGHT
Warren’s Failure to Issue Local Limits for Barium
156.   Plaintiff realleges and incorporates by reference herein all above allegations and
aforementioned exhibits.
157.   Section BB.4 of Warren’s NPDES Permit 3PE00008, requires Warren to “develop and
enforce technically based local limits to prevent the introduction of pollutants into the
POTW which will interfere with the operation of the POTW, pass through the treatment
works, be incompatible with the treatment works, or limit wastewater or sludge use
options.”

 
  

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158.   Warren’s NPDES Permit 3PE00008 gives the waste load allocation for fourteen
pollutants, including barium, instructing Warren to “use the following waste load
allocation values when evaluating local limits.” The permit also requires Warren to
“continue to review and develop local limits as necessary.”
159.   To date Warren has developed local limits for each of the fourteen listed pollutants
except barium.
160.   Warren has also not placed a barium limit in Patriot’s Administrative Order despite
Warren remaining in significant noncompliance with the preliminary effluent standard for
barium contained in its NPDES permit 3PE00008.
161.   By failing to issue a local limit for barium, when elevated levels of barium in the Warren
POTW’s influent is resulting in pass through of barium into the Warren POTW’s final
outfall at levels exceeding what is permissible under the Warren POTW’s NPDES
permit, Warren is violating Section BB.4. of its NPDES permit, in violation of the Clean
Water Act.
162.   The citizen suit provision of the CWA defines “effluent standard or limitation” to include
“a permit or condition thereof issued under [the National pollution discharge elimination
system].” Thus, as a violation of Warren’s NPDES permit, this violation is enforceable
through the citizen suit provision of the CWA.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that the Court grant the following relief:
A.   Declare that the Defendants have violated and are in violation of the Clean Water Act as
a result of the violations described above.
B.   Enjoin the Defendants from further violations of the Clean Water Act.

 
  

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C.   Issue a preliminary and permanent injunction that prevents Patriot from discharging to
the Warren POTW until such operation is lawful pursuant to the Clean Water Act.
D.   Require, in the form of injunction or mandamus, that, prior to accepting any further
wastewater from Patriot, Warren issue an Administrative Order that places a daily
maximum TDS limit of 50,000 mg/L for Patriot’s entire waste stream, including
discharges from oil and gas wastewater processing.
E.   Require, in the form of injunction or mandamus, that, prior to accepting any further
wastewater from Patriot, Warren issue an Administrative Order requiring radiological
testing to be conducted on Patriot’s discharge into the Warren sewer.
F.   Assess civil penalties against Defendants for $37,500 per day per violation, as provided
in 33 U.S.C. §§ 1319(d), 1365(a), and 40 C.F.R. Part 19 (adjustment of civil monetary
penalties).
G.   Award FreshWater Accountability Project litigation costs, including attorney fees and
expert fees, pursuant to Section 505(d) of the Clean Water Act. 33 U.S.C. § 1365(d).
H.   Grant such other relief as the Court deems just and proper.
JURY TRIAL DEMANDED
Plaintiff respectfully requests a jury trial on all issues so triable.
Date: June 27, 2017

Respectfully submitted by:

/s/ Megan M. Hunter
Megan M. Hunter, Esq.

 
  

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Ohio Bar No. 96035
Email: mhunter@fairshake-els.org
James Yskamp, Esq.
Ohio Bar No. 0093095
Email: jyskamp@fairshake-els.org
Fair Shake Environmental Legal Services
159 S. Main Street, Suite 1030
Akron, OH 44308
Telephone: (234) 571-1970
Counsel for:
FreshWater Accountability Project.
P.O. Box 473
Grand Rapids, Ohio 43522

 
  

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CERTIFICATE OF SERVICE
I, Megan Hunter, hereby certify that a true and correct copy of the foregoing Complaint was
filed electronically and sent to all parties and persons on this 27th day of June 2017, via the
means and at the addresses listed below as follows:
April Bott
Bott Law Group, LLC
5126 Blazer Parkway
Dublin, OH 43017
Counsel for Defendant, Patriot Water Treatment, LLC
Greg Hicks, Law Director
City of Warren Law Department, Civil Division
391 Mahoning Ave. N.W.
Warren, OH 44483

Via Certified U.S. Mail,
return receipt requested

Via Certified U.S. Mail,
return receipt requested

Scott Pruitt, Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., N.W. (Mailcode: 1101A)
Washington, D.C. 20460

Via Certified U.S. Mail,
return receipt requested

Jeff Sessions, U.S. Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001

Via Certified U.S. Mail,
return receipt requested

Date: June 27, 2017

 
  

By /s/ Megan M. Hunter____________
Megan M. Hunter # 96035
Counsel for Plaintiff

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