People of the State of California v. International Boundary and Water Commission et al

Filing 1

COMPLAINT against International Boundary and Water Commission, Jose Nunez ( Filing fee $ 400 receipt number 0974-11631203.), filed by People of the State of California. (Attachments: #1 Civil Cover Sheet, #2 Exhibit 1, #3 Exhibit 2)The new case number is 3:18-cv-2050-JM-JMA. Judge Jeffrey T. Miller and Magistrate Judge Jan M. Adler are assigned to the case. (Hoos, Phillip)(lrc) (sjt).

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XAVIER BECERRA

Attorney General of California

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MICHAELP. CAYABAN

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NOAH GOLDEN-KRASNER (SBN 217556)
PHILLIP M. Hoos (SBN 28'8019)

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Supervising Deputy Attorney General
Deputy Attorneys General
600 West Broadwa:x Ave., Suite 1800
San Diego" CA 92101
P.O. Box 115266
San Diego, CA 92186-5266
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for PlaintiffPeop)e of the State of
California, ex rel. the California Regional ·
Water-Quality Control Board, San Diego
Re~ion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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PEOPLE OF THE STATE OF CALIFORNIA, Case No. '18CV2050 JM JMA
Ex. Rel. THE REGIONAL WATER
QUALITY CONTROL BOARD, SAN
DIEGO REGION,
COMPLAINT FOR ,
Plaintiff, DECLARATORY AND
INJUNCTIVE RELIEF (CLEAN
v.
· WATER ACT, 33 U.S.C. § 1251 et
seq.)
INTERNATIONAL BOUNDARY AND
WATER COMMISSION, UNITED STATES
SECTION; JOSE NUNEZ, in his capacity
as Acting Commissioner of the
INTERNATIONAL BOUNDARY AND
WATER COMMISSION, UNITED STATES
SECTION
Defendants.

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Plaintiff, the People of the State of California, ex rel., the Regional Water
Quality Control Board, San Diego Region, alleges as follows:

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I
Complaint For Declaratory and Inj~nctive Relief

INTRODUCTION

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1. This is an action for injunctive and declaratory relief challenging

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Defendants Jose Nunez's and the United States International Boundary and Water

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Commission, United States Section's (together referred to herein as "USIBWC")

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repeated violations of the Federal Water Pollution Prevention and Control Act

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("Clean Water Act") 33 U.S.C. section 1251 et seq. USIBWC's Clean Water Act

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violations relate to the continuing discharge of millions of gallons of waste-

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consisting of untreated sewage, bacteria, pesticides, chemicals, and heavy metals-

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from wastewater treatment facilities owned, operated, and c?ntrolled by USIBWC.

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This waste escapes from USIBWC's facilities and enters the Tijuana River, Tijuana

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River Estuary and ultimately into the Pacific Ocean, where it degrades California's

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water quality, pollutes California's beaches and shoreline, harms the unique natural.

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environment of the area, and endangers public health.

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2. Plaintiff the California Regional Water Quality Control Board, San Diego

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Region ("San Diego Water Board"), is an agency of the State of California and one

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of nine regional water boards whose mission is to preserve, protect, enhance and

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restore the quality and beneficial uses of California's water resources for the benefit

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of present and future generations.

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13201(a), 13241, and 13377.

CaL Water Code §§ 13000, 13001, 13200,

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3. The San Diego Water Board brings this action, on behalf of the People of

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the State of California, to ensure· USIBWC complies with its obligations under the

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Clean Water Act and with the requirements and conditions of USIBWC's National

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Pollution Discharge Elimination System Permit, No. CA0108928 ("NPDES

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Permit")-which was issued by the San Diego Water Board as Order No. R9-2014-

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0009, as amended by Order Nos. R9-2014-0094 and R9-2017-0024. In so doing, the

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San Diego Water Board seeks to enjoin both the continuing, unlawful discharge of

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pollution from USIBWC's wastewater treatment facilities as well as USIBWC's

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failure to adequately prevent, monitor, or remediate those discharges, in violation of
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Complaint For Declaratory and Injunctive Relief

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Clean Water Act sections 301 and 402, 33 U.S.C. §§ 1311, 1342 (herein Sections

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301 and 402, respectively).

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4. For nearly three years, spanning from at least April 2015 through February

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2018, USIBWC repeatedly failed to properly manage and operate its wastewater

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treatment facilities and comply with the terms of its NPDES Permit. USIBWC's

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systematic NPDES Permit violations are the byproduct ofits unwillingness to address

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pollution that crosses into the United States from Mexico, absent being compelled

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through legal action.

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5. Without the compulsion of a court order, USIBWC will continue to operate

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its wastewater treatment facilities in violation of its NPDES Permit and the Clean

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Water Act. IfUSIBWC fails to correct its on-going permit violations, water quality

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within the Tijuana River, Tijuana River Estuary and the Pacific Ocean will be further

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impaired to the detriment of the communities of San Diego County and those who

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work and seek recreation in and around those areas.

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JURISDICTION

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6. This action arises under the Clean Water Act. This Court has jurisdiction

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over the subject matter of this action pursuant to the Clean Water Act's citizen suit

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provision, 33 U.S.C. § 1365(a), and federal question jurisdiction, 28 U.S.C. §§ 1331,

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1346.

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7. USIBWC is subject to the jurisdiction of this Court under the terms of

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Executive Order 12467, issued on March 2, 1984, which provides that the immunities

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conferred on the International Boundary and Water Commission, as a public

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international organization, by the International Organization Immunities Act "shall

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not extend to the United States Section of the Commission in respect of matters

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within the exclusive control, supervision or jurisdiction, ... pursuant to international

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agreements in force with the United Mexican States, statute or other authority."

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Pursuant to a 1944 Treaty between the United States and Mexico, USIBWC has

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exclusive control over the operation of its treatment facilities at-issue in this lawsuit.
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Complaint For Declaratory and Injunctive Relief

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8. USIBWC has also waived sovereign immunity to the claims asserted in
this Complaint. 33 U.S.C. §§ 1323, 1365(a).

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9. On May 14, 2018, the San Diego Water Board provided USIBWC with

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notice of the Clean Water Act violations alleged in this Complaint and has otherwise

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complied with any and all procedural prerequisites necessary for filing this

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Complaint. The San Diego Water Board transmitted the notice letter to USIBWC

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via certified mail, return receipt requested. On that same day, copies of the notice

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were sent to: The Administrator of the United States Environmental Protection

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Agency; the United States Environmental Protection Agency, Pacific Southwest,

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Region IX; the United States Attorney General; and the California State Water

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Resources Control Board, Office of Enforcement. A copy of the San Diego Water

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Board's notice letter is attached hereto as Exhibit 1 and incorporated herein by this

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reference.

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VENUE

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10. Venue in this Court is proper pursuant to Clean Water Act section

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505(c)(l), 33 U.S.C. § 1365(c)(l), because the wastewater discharges from

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USIBWC's facilities violated and are violating effluent standards or limitations of

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the Clean Water Act, and occurred in San Diego County, California. San Diego

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County falls within this judicial district. Venue is also proper under 28 U.S.C. §

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139l(e)(l), because the events or omissions giving ri~e to the San Diego Water

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Board's claims have occurred, are occurring, and will continue to occur in this

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judicial district.

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PARTIES

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11. Plaintiff San Diego Water Board is an agency of the State of California,

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and one of nine regional water quality control boards. Cal. Water Code §§ 13200,

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1320l(a). The California Water Code vests the state's regional water quality control

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boards with primary responsibility for regulating state water quality. Cal. Water

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Code§§ 13000, 13001.
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Complaint For Declaratory and Injunctive Relief

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12. The San Diego Water Board oversees all basins within California draining

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into the Pacific Ocean between the southern boundary of the Santa Ana region and

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the California-Mexico border. Cal. Water Code § 13200(f). The Tijuana River, its

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tributaries, the Tijuana River Estuary, and the Pacific Ocean in San Diego County

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are within the jurisdiction of the San Diego Water Board.

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13. As part of its mandate, the San Diego Water Board is vested with specific

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powers and duties and authorized to administer and implement the Clean Water Act

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in California. The San Diego Water Board is a "citizen" within the meaning of Clean

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Water Act section 505(g), 33 U.S.C. § 1365(g), because its interest in ensuring

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compliance with the Clean Water Act and protecting water quality of waters of the

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state and of the United States is "adversely affected" by USIBWC's acts and

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omissions.

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14. USIBWC is an agency of the United States. Pursuant to a 1944 Treaty

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between the United States and Mexico, USIBWC is responsible for addressing waste

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entering the United States from Mexico along the Tijuana River watershed. To fulfill

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its obligations, starting in 1996, USIBWC constructed a network of facilities

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designed for a single purpose: to capture and treat waste flows entering the United

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States from Mexico through the Tijuana River watershed (transboundary flows).

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This network includes:

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a)

the South Bay International Wastewater Treatment Plant

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("Plant"), a secondary treatment plant which receives wastewater from the Tijuana

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River watershed, treats the wastewater, and discharges the treated wastewater into

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the Pacific Ocean through the South Bay Ocean Outfall;

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b)

a system of five concrete channels and detention basins located

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in canyons within San Diego County ("canyon collectors"), just north of the United-

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States-Mexico border and west of the main channel of the Tijuana River. USIBWC

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designed the canyon collectors to capture dry-weather, transboundary flows from

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Mexico and convey that wastewater to the Plant; and,
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Complaint For Declaratory and Injunctive Relief

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c)

two pump stations to facilitate the diversion of wastewater from

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15. In order to lawfully operate these facilities, USIBWC applied for and

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received a NPDES permit from the San Diego Water Board in 2014 to allow the

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discharge of treated waste into the Pacific Ocean. The San Diego Water Board

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alleges that the Clean Water Act violations at issue in this litigation arose through

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USIBWC's delinquent operation and maintenance of these facilities between April

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2015 and February 2018, resulting in the improper discharge, monitoring, and

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recovery of waste into waters of the state and United States.

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16. Defendant Jose Nufiez is Acting Commissioner of the USIBWC is an

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individual responsible for implementing the actions necessary to remedy the

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violations of law alleged by the Plaintiff in this action, and is named only in his

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official capacity.

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CLEAN WATER ACT AND NPDES PERMIT REQUIREMENTS

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17. Congress passed the Clean Water Act to "restore and maintain the

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chemical, physical, and biological integrity of the Nation's waters[.]" 33 U.S.C. §

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125 l(a).

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18. To protect the chemical, physical, and biological integrity of the nation's

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surface waters, the Clean Water Act prohibits the discharge of pollutants from point

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sources to navigable waters of the United States except as authorized. 33 U.S.C. §§

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125l(a)(l) and (3), 131 l(a). The National Pollutant Discharge Elimination System

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("NPDES") program was created in 1972 as a federal permit program designed to

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regulate the discharge of pollutants. 33 U.S.C. § 1342; 40 C.F.R. §§ 122, et seq.

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Under the NPDES program, discharges of pollutants are prohibited unless discharged

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in compliance with an NPDES permit. Among other things, Section 301, 33 U.S.C.

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§ 131 l(a), prohibits the discharge of pollutants from a point source to a water of the

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United States without a NPDES permit.

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6

Complaint For Declaratory and Injunctive Relief

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19. The United States Environmental Protection Agency ("EPA") is charged

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with the responsibility of administering the NPDES permit program unless EPA

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approves a state water quality control program to implement the NPDES

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requirements. 33 U.S.C. §§ 1251(d), 1342(b). Pursuant to federal regulations,

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NPDES permits issued by states with approved programs must contain certain terms

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and conditions to safeguard water quality. 33 U.S.C. §§ 1311, 1342(a) and (b).

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20. California participates in the NPDES permit scheme pursuant to the

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Porter-Cologne Water Quality Control Act ("Porter-Cologne Act"). Cal. Wat. Code,

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§§ 13260-13276, 13370-13390. The EPA has approved the entire regulatory scheme

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set forth in the Porter-Cologne Act, which establishes a comprehensive statewide

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program for water quality administered through the State Water Resources Control

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Board ("the State Water Board") and the nine regional boards, within a framework

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of statewide coordination and policy. Cal. Wat. Code, §§ 174, 13001.

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21. The Porter-Cologne Act is intend_ed to· protect, restore, and prevent

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degradation of the quality and beneficial uses of the waters of the state and of the

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United States. Cal.Wat. Code,§§ 13000, 13050(±), 13241, 13263. As is authorized

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under the Clean Water Act, the Porter-Cologne Act adopted more stringent controls

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on discharges into the waters of the state and United States than are required under

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the Clean Water Act. 40 C.F.R. §§ 131.2, 130.3; Cal. Wat. Code,§ 13377 etseq.

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22. As directed by the Clean Water Act, California adopted water quality

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standards for the ocean waters in a California Ocean Plan, and for each region of

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California, as set forth in regional water quality control plans ("basin plans"). As

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relevant to this matter, water quality standards for the San Diego region, are set forth

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in both the California Ocean Plan, and the San Diego Basin Plan adopted by the San

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Diego Water Board and approved by the State Water Board. The water quality

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objectives in the California Ocean Plan, San Diego Basin Plan, and other relevant

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plans, policies, and regulations, are designed to protect the water's beneficial uses,

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which include recreation, the preservation and enhancement of fish, wildlife, and
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Complaint For Declaratory and Injunctive Relief

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other aquatic resources, and th~ domestic or municipal water supply. Cal. Wat. Code,

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§§ 130500), 13170, 13240, 13241.

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23. The principal means of regulating activities which may affect water

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quality and implementing basin plans in California is through, issuance of "waste

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discharge requirements," which are equivalent to permits issued under the Clean

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Water Act. California Water Code section 13376 sets forth the discharger's duties to

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obtain waste discharge requirements and is modeled on the provisions of the Clean

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Water Act. Compare Cal. Wat. Code§ 13376, with 33 U.S.C. §§ 1311, 1342.

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24. Accordingly, NPDES permittees must, among other requirements,

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establish and maintain records and implement monitoring programs which require

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regular reporting to the permitting agency. 33 U.S.C. § 1342;. Cal. Water Code §

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13383.

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25. Any violation of a NPDES permit issued by the San Diego Water Board

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constitutes an independent violation of the Clean Water Act under Section 402, 33

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u.s.c. §1342.

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FACTUAL BACKGROUND

I.

usmwc IS RESPONSIBLE FOR RESOLVING CROSS-BORDER
POLLUTION WITHIN THE TIJUANA RlvER WATERSHED.

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26. The Tijuana River watershed encompasses 1750 square miles and

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straddles the United States-Mexico border. The vast majority of the watershed is

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located in Mexico and drains principally into the Tijuana River, which crosses the

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border into California through a flood conveyance channel-operated by the

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USIBWC-and feeds the Tijuana River Estuary within San Diego County.

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27. The Tijuana River Estuary is one of the last, intact, saltwater estuaries in

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California and is home to numerous migratory species, and species at-risk for

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extinction and protected under the California Endangered Species Act.

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28. The Tijuana River enters the estuary and eventually flows into the Pacific
Ocean near the coastal city of Imperial Beach.
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Complaint For Declaratory and Injunctive Relief

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29. For decades, untreated wastewater, sewage, trash, and sediment from the .

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Tijuana River watershed flowed into San Diego County, and ultimately into the

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Pacific Ocean. This waste is particularly toxic. It can c_ontain excessive levels of

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pesticides, heavy metals, and bacteria that are .harmful to human health. The amount

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of waste entering California from the Tijuana River watershed has only increased

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due, in part, to population growth within the City of Tijuana. As a result of continued

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pollution entering the United States through the Tijuana River watershed, the lower

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six miles of the Tijuana River and Tijuana River Estuary have been listed by the State

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Water Board as impaired water bodies pursuant to Clean Water Act section 303(d),

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u.s.c. § 1313(d).

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30. The consistent presence of pollutants within the Tijuana River and

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Tijuana River Estuary preclude attainment of water quality objectives set by the State

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of California pursuant to the Porter-Cologne Act, and impairs the beneficial uses of

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these water bodies, including protecting aquatic speqies and habitat as well as human

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health. In order to protect the public from the impacts of this waste, beaches along

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the City of Imperial Beach-near the confluence of the Tijuana River Estuary and

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the Pacific Ocean-·are often closed for much of the year. Indeed, these beaches were

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closed over 200 days in 2015, and approximately 150 days in both 2016 and 2017.

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31. Pursuant to a 1944 Treaty between the United States and Mexico-

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entitled Utilization of Waters of the Coiorado River aniTi}uana Rivers and of the

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Rio Grande-the International Boundary and Water Commission ("IBWC") was

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authorized to resolve these water quality issues at border and trans border rivers and

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streams. The IBWC consists of two sections, the USIBWC and the Mexico Section

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(also referred to as La Comision Internacional de Limites y Aguas). Each section has

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exclusive jurisdiction and control over works constructed, acquired and/or used to

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fulfill its treaty obligations on its respective side of the.border.

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32. The 1944 Treaty is amended through Minutes approved by both the

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United States and Mexico. In recognition of the health and environmental problems
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Complaint For Declaratory and Injunctive Relief

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associated with increasing cross-border flows of waste. from Mexico into the United

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States, on July 2, 1990, the two countries approved Minute 283-entitled Conceptual

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Plan/or the International Solution to the Border Sanitation Problem in San Diego,

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California/Tijuana, Baja California.

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designing, constructing and operating a network of facilities to treat transboundary

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flows from the Tijuana River watershed entering into the United States, consisting of

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the Plant, the five canyon collectors, and two pump. stations (collectively the

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"Facilities").

Minute 283 provided the framework for

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33. The five canyon collectors were designed by USIBWC to funnel and

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capture dry-weather, wastewater flowing into California from the Tijuana River

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. watershed and City of Tijuana, which flows have a great potential to cause or

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contribute to the degradation of water quality in the state.

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34. The canyon collectors consist of concrete channels of varying lengths,

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detention basins, and screened inlets. After crossing the border, waste is funneled

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through concrete-lined channels and culverts into detention basins, where the flow is

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is diverted through a screened inlet, and travels to the Plant for treatment. 'The inlet

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is manually opened or closed through the operation of a valve controlled by

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USIBWC. Only when the inlet is open and unobstructed can wastewater flow toward

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the Plant. USIBWC, through its operation of the inlet valve and maintenance of the

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inlet, controls the flow of wastewater within the canyon collectors to the Plant.

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35. The canyon collectors were constructed to capture dry-weather,

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transboundary waste flows at five locations: Stewart's Drain, Silva Drain, Canyon

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de! Sol, Smugglers Gulch, and Goat Canyon.

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collectors with varying levels of capacity. The maximum design capacity for each

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canyon collector is as follows: Stewart's Drain-1.67 million gallons per day

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("MGD"); Silva Drain-0.33 MGD; Canyon de! Sol-0.67 MGD; Smuggler's

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Gulch-4.67 MGD; and Goat Canyon-2.33 MGD. The canyon collector capacities

USIBWC designed its canyon

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Complaint For Declaratory and Injunctive Relief

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were provided to the San Diego Water Board by USIBWC and incorporated into the

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NPDES Permit. When flows in the canyons exceed the maximum design capacity of

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the canyon collectors, or if the canyon collectors are not properly operated or

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maintained, waste overflows from these facilities and discharges into waters of the

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state and waters of the United States.

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. 36. Upon entering the inlet, wastewater is diverted to the Plant from the

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canyon collectors largely by gravity. However, wastewater captured at the Goat

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Canyon and Smuggler's Gulch canyon collectors are directed toward the Plant

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through the Goat Canyon and Hollister pump stations, respectively.

Once the

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wastewater reaches the Plant it is treated to secondary treatment effluent limitations

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standards. The treated wastewater is then sent to the South Bay Ocean Outfall and

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ultimately discharged into the Pacific Ocean.

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37. At all relevant times, USIBWC owned and controlled the Facilities.

II.

USIBWC's NPDES PERMIT REQUIREMENTS

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38. On or about November 14, 1996, the San Diego Water Board issued Order

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No. 96-50 regulating waste discharge from the Facilities under the provisions of

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Porter-Cologne Act, as well as regulations adopted by the State Water Board. The

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term "waste" is defined as "sewage and any and all other waste substances, liquid,

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solid, gaseous, or radioactive, associated with human habitation, or of human or

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animal origin, or from any proqucing, manufacturing, or processing operation,

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including waste placed within containers of whatever nature prior to, and for

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purposes of, disposal." Cal. Wat. Code§ 13050(d).

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39. On June 26, 2014, the San Diego Water Board issued the NPDES Permit

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to USIBWC (Order No. R9-2014-0009, as amended by Order No. R9-2014-0094}--

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which updated prior waste discharge requirements for the Facilities and incorporated

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discharge restrictions set forth in chapter 4 of the San Diego Basin Plan. A copy of

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the NPDES Permit is attached as Exhibit 2.

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11
Complaint For Declaratory and Injunctive Relief

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40. The NPDES Permit imposed numerous requirements on USIBWC related

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to the operation of the Facilities. The provisions relevant to this Complaint are as

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follows:

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Unlawful Discharges

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a)

"The discharge of waste from the Facilities to a location other

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than [the South Bay Ocean Outfall], unless specifically regulated by this [permit] or

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separate [Waste Discharge Requirements] is prohibited." (Exh. 2 at p. 4.)

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b)

The discharge prohibition, described above, "applies to any dry

weather discharge of waste overflowing the canyon collectors." (Exh. 2 at p. F-36.)

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c)

Weather is defined as dry if the preceding 72 hours have been

11 · without precipitation greater than b.1 inches based on a rain gauge at Goat Canyon.
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(Exh. 2 at p. A-11.)

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d)

USIBWC must comply with "Discharge Prohibitions contained

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in chapter 4 of the San Diego Basin [Plan]," which plan prohibits "discharge of waste

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to land, except as authorized by [Waste Discharge Requirements] or the terms

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prescribed in Water Code section 13264." (Exh. 2 at pp. 4, G-1; see also Exh. 2 at p.

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F-36.)

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e)

The San Diego Basin Plan also prohibits "the discharge of waste

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to waters of the state in a manner causing, or threatening to cause a condition of

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pollution, contamination or nuisance as ·defined in Water Code section 13050[]."

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(Exh. 2 at p. G-1; see also Exh. 2 at pp. 4, F-36.) 1

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The California Water Code defines "contamination" to mean "an
impairment of the quality of the waters of the state by waste to a degree which
creates a hazard to the public health throug1l poisoning_or through tlie spread of
disease." Cal. Wat. Code§ 13050(k). The California Water Coae defines nuisance
to mean "anything which meets all of the following requirements: (1) Is injurious to
health, or is mdecent or offensive to the senses, or an obstruction to the free use of
property, so as to interfere wit[1 the comfortable enjoyment oflife or propercy. (2)
Aftects at the same time an entire community or neighborhood, or any consiaerable
number of persons, although the extent of the annoyance or damage inflicted upon
individuals may be unequal. (3) Occurs durin.&, or as a result of, tlie treatment or
disposal of wastes." Cal. Wat. Code, § 13050-(m).
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Complaint For Declaratory and Injunctive Relief

1 · Maintenance of the Facilities

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f)

In order to comply with its discharge requirements, USIBWC

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"shall at all times properly operate and maintain all facilities and systems of treatment

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and control (and related appurtenances) which are installed or used by [USIBWC] to

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achieve compliance with the conditions of this [Permit] ... This provision requires the

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operation of backup or auxiliary facilities or similar systems that are installed by

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[USIBWC] only when necessary to achieve compliance with the conditions of this"

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NPDES Permit. (Exh. 2 at D-1.)

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Spill Prevention and Response Requirements

g)

To address waste :,pills from USIBWC Facilities, the NPDES

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Permit requires that USIBWC "prepare and. submit a Spill and Transboundary

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Wastewater Flow Prevention and Response Plan [Prevention/Response Plan] ... to

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the San Diego Water Board." (Exh. 2 at p. 16.)

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h)

"At a minimum, the [Prevention/Response Plan] shall address the

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three types of events identified above in section VI.C.2.a.i." (Id.) The three types of

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events requiring implementation of the Prevention/Response Plan include:

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1.

"Facilities Spill Events"-defined as wastewater flows that

escape from a specific USIBWC facility, such as a pump station;
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"Flow

Event

Type

A"-defined

as

dry-weather,

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transboundary flows traveling into the canyon collectors, but not diverted by the

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canyon collectors; and

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111.

"Flow Event Type B"-defined as dry-weather spill or dry

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weather trans boundary flows (not categorized in other Event Types above) that

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creates, or threatens to create, pollution or nuisance conditions in waters of the state

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and/or United States. (Exh. 2 at p. 15.)

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Complaint For Declaratory and Injunctive Relief

iv.

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"Transboundary flows" constitute "wastewater and other

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flows that cross the international border from Mexico into the United States." (Exh.

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2atp.A-10.)

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i)

To avoid spi!is associated with any of these three event types, the

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Prevention/Response Plan requires USIBWC "provide a program for routine

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inspection and preventative maintenance of the entire wastewater system that is

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owned and operated by [USIBWC.]" (Exh. 2 at p. 18.)

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j)

To ensure USIBWC properly responds to spills from the three

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event types, the Prevention/Response Plan must "describe guidelines and procedures

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for taking all feasible steps and necessary remedial actions to 1) control or limit the

11

spill and/or transboundary wastewater flow volume, 2) terminate the spill and/or

12

transboundary wastewater flow, and 3) recover as much. of the spill and/or

13

transboundary wastewater flow volume as possible for proper disposal, including any
,

14

wash down water." (Exh. 2 at p. 20.)

15

k) · Upon drafting its Prevention/Response Plan, USIBWC was

16. required to submit it to the San Diego Water Board, receive comments on the
17

Prevention/Response Plan, and submit the revised Prevention/Response Plan to the

18

San Diego Water Board. USIBWC must "commence with implementation of the

19

[Prevention/Response Plan]

.

immediately upon submission of the revised
.

20

[Prevention/Response Plan]unless otherwise directed in writing by the San Diego

21

Water Board Executive Officer." (Exh. 2 at p. 22.)

22
23
24

Monitoring and Reporting Requirements

1)

USIBWC "shall comply with the [Monitoring and Reporting

25

Program], and future revisions thereto, in Attachment E of' the NPDES Permit.

26

(Exh. 2 at p. 14.)

27
28

m)

As part of its monitoring requirement, USIBWC must "conduct

daily inspections" of the canyon collectors "for the transboundary wastewater flows."
14
Complaint For Declaratory and Injunctive Relief .

1

(Exh. at p. E-32.) The inspections "shall be documented, recorded, and contain the

2

following information:

3

1.

4

The monitoring location name and/or GPS coordinates,

date, and time of inspection;

5

11.

6

m.

The operational condition of the canyon collector system;

1v.

If a flow is observed passing [USIBWC's] canyon collector

7

The weather conditions at the time of inspection

and,

8

9

system, the approximate date/time and amount of the last precipitation event, the

10

estimated total volume diverted into [USIBWC's] canyon collector system, the

11

estimated total volume that passes [USIBWC's] canyon collector system, and a

12

description of the flow estimate methodology[.]" (Exh. 2 at p. E-33.)

13

n)

In addition, USIBWC is required to "report spills and

14

transboundary wastewater flows in accordance with" specified procedures for

15

Facilities Spill .Events and Flow Events Type A.
1.

16

For a Flow Event Type A, "if there is a transboundary flow

17

that passes [USIBWC]'s canyon collector system observed at the time of inspection,

18

[USIBWC] shall monitor the flow for" specified water quality parameters including

19

enterococcus and fecal coliform concentrations.

20

wastewater spills must "be tabulated on a monthly basis and summarized in the

21

monthly self-monitoring report," and provided to the San Diego Water Board. (Exh.

22

2 at pp. E-34.)

23

11.

(Exh. 2 at p. E-33.)

These

For Facilities Spill Events, USIBWC must "include a

24

detailed summary of spills in the monthly self-monitoring report for the month in

25

which the spill occurred," and submit the same to the San Diego Water Board. (Exh.

26

2 at p. E-31.)

27
28
15
Complaint For Declaratory and Injunctive Relief

1

Receiving Water Limitations

2

o)

USIBWC must also perform "receiving water and sediment

3

monitoring in the vicinity of the" South Bay Ocean Outfall. As part of its monitoring,

4

USIBWC must test specific shoreline stations for several water quality parameters

5

including fecal coliform and enterococcus. (Exh. 2 at pp. E-14,15.)

6

p)

This testing must be performed to ensure that "[t]he discharge of

7

waste [by USBIWC] shall not cause or contribute to violation of [receiving water]

8

limitations in the Pacific Ocean.

9

determined from samples collected at stations representative of the area within the

10

waste field where initial dilution is completed." (Exh. 2 at p. 11.) These receiving

11

water limitations include specific concentration levels for fecal coliform and

12

enterococcus bacteria.

13

Ill. USIBWC FACILITIES FAILED To COMPLY WITH ITS NPDES PERMIT,

Compliance with these limitations shall be

'C/

14

41. Based on USIBWC's spill reports and daily inspection logs, between April

15

19, 2015 and October 19, 2017, USIBWC reported that its canyon collectors at

16

Stewart's Drain, Canyon de! Sol, and Goat Canyon failed to divert more than 11

17

million gallons of waste to the Plant. Indeed, as illustrated in Table A below,

18

USIBWC reported that there were eleven separate Type A discharges events from its

19

canyon collectors. Moreover,'on February 27, 2018, USIBWC reported that the Goat

20

Canyon pump station malfunctioned. and released over fifty thousand gallons of

21

waste.

22
23

24
25

26
27
28
16
Complaint For Declaratory and Injunctive Relief

1
TABLE A

2
Spill Date

Volume
foallons)

Discharge Type

Amount
Recovered

Canyon Collector

Inlet
Obstruction

Discharge
MonitorinP

4

4119115

2,000

Type A

NIA

Canyon de! Sol

NIA

Incomplete

5

1-/28116

2,238

Type A

0

Stewart's Drain

No

Incomplete

6

915116

390

Type A

0

Canyon de! Sol

Yes

Incomplete

7

311/17

145,000

Type A

0

Goat Canyon

Yes

Incomplete

8

4124117

12,850

Type A

0

Stewart's Drain

Yes

Incomplete

9

4130117

645,000

Type A2

0

Goat Canyon

NIA

None

10

5121117

1,560

Type A

0

Stewart's Drain

Yes

None

11

5124117

3,800

Type A

0

Stewart's Drain

Yes

None

12

6127117

5,500,000 Type A

0

Canyon de! Sol

Yes

Incomplete

13

1016117

4,152,000 Type A

0

Canyon de! Sol

Yes

Incomplete

14

10119117

1,207,000 Type A

0

Canyon de! Sol

Yes

Incomplete

15

2127118

54,000

0

Goat Canyon

Yes

NIA

3

\

Facility Spill

16

17
18

42. The discharges identified in Table A did not occur at the South Bay Ocean
Outfall, as was required by the NPDES Permit.

19

43. Instead, on information and belief, the San Diego Water Board alleges that

20

the pollution from these discharges flowed onto state land, the Tijuana River, Tijuana

21

River Estuary, and/or the Pacific Ocean.

22

44. On information and belief, the spills identified in Table A as Type A

23

discharge events were due to USIBWC's failure to properly maintain and operate its

24

canyon collectors.

25

because USIBWC failed to remove trash and other debris that interfered with the

Specifically, these discharges occurred during dry weather,

26
27
28

2

The dischar_ge on April 30, 2017 was initially, and incorrectly, labeled as a
Type B event by USIBWC.
17
Complaint For Declaratory and Injunctive Relief

1

diversion of wastewater through the inlet, and/or USIBWC's failure to properly

2

maintain the berms of the canyon collector detention basins.

3

45. The amount of waste discharged from these canyon collectors was less

4

than the canyon collectors' respective maximum capacities in all but three

5

instances-June 27, and October 6 and 19, 2017.

6
7
8
9

46. On information and belief, the spill resulting from the Goat Canyon pump·
station resulted from the malfunction of equipment under USIBWC's control.
47. The USIBWC failed to take water samples from some, but' not all, of the
discharge events described iri. Table A.

The testing of these samples revealed

10

multiple exceedances of water quality standards for fecal coliform and enterococcus

11

bacteria. The waste discharged from these spill events also contained contaminants

12

including mercury, chloroform, dichlorobenzene, copper, nickel, zinc, oil, ammonia

13

grease, and suspended solids, among others.

14

48. These very contaminants were identified by the San Diego Water Board,

15

and selected for monitoring in the NPDES Permit because they contribute to the

16

ongoing threat to recreation and designated beneficial uses of the Tijuana River and

17

the Tijuana River Estuary. (Exh. 2 at p. F-48.)

18

49. The USIBWC performed water quality testing along shoreline stations

19

during time periods corresponding· to the Table A discharge events. This testing

20

revealed exceedances of receiving water limitations for fecal coliform bacteria during

21

the months of January 2016, September 2016, and March, April, May, June, and

22

October 2017. This same testing revealed that at least on one occasion, on June 27,

23

2017, a water sample exceeded the receiving water limitation standards for

24

enterococcus.

25

50. On information and belief, the San Diego Water Board alleges that, based

26

on the contents of the water quality samples taken by USIBWC, the waste discharged

27

from the canyon collectors impaired water quality within the Tijuana River, Tijuana

28
18
Compl_aint For Declaratory and Injunctive Relief

1

River Estuary, and the Pacific Ocean, and impaired the beneficial uses of these water

2

bodies and contributed to the exceedance of receiving water limitations.

3

51. The full scope of water pollution impacts caused by USIBWC's canyon

4

collectors discharges, however, is not known because USIBWC failed to fulfill its

5

monitoring and reporting obligations for any of the Type A discharges outlined in

6

Table A.

7

52. Specifically, on at least three occasions-May 21, May 24, and April 30,

8

2017-·USIBWC failed to collect and test water samples from these dry-weather

9

discharges for any of the specific contaminants iden,tified by the NPDES Permit.

10

53. Moreover, even where USIBWC performed tests on water samples, it

11

failed to test or report test results for all parameters as required under the NPDES

12

Permit. USIBWC took water samples for eight of the eleven Type A discharges

13

events in Table A, occurring on April 19, 2015, January 29, 2016, September 5, 2016,

14

March 1, 2017, April 24, 2017, June 27, 2017, October 6, 2017, and October 19, 2017.

15

For each of these samples, USIBWC failed to test or report the test results for the

16

same six pesticides: demeton, guthion, malathion, mirex, methoxchlor, and parathion.

17

In addition, for the January 29, 2016, September 5, 2016, and April 24, 2017 samples,

18

{!SIBWC failed on test or report results for chronic toxicity, tetrachlorodibenzo-p-

19

dioxin, and/or asbestos.

.

'

20

54. USIBWC was also required to implement its Prevention/Response Plan to

21

prevent and respond to the incidents in Table A. USIBWC submitted its proposed

22

Prevention/Response Plan to the San Diego Water Board on December 22, 2014.

23

USIBWC submitted its revised plan to the San Diego Water Board on July 13, 2015.

24

The USIBWC was therefore required to implement this Prevention/Response Plan as

25

of that date. As required under the NPDES Permit, the Prevention/Response Plan

26

mandated that USIBWC coordinate cleanup of Type A or Facility Spill events. All

27

but one of the discharge events described in Table A occurred after July 13, 2015.

28

Yet, based on its reports of spill events, USIBWC admitted that it failed to implement
19
Complaint For Declaratory and Injunctive Relief

1

its Prevention/Response Plan for any of the discharges in Table A, as it did not

2

recover or clean up a single gallon of waste discharged.

3

55. The San Diego Water Board attempted to resolve these violations with

4

USIBWC informally through a workshop held on December 12, 2017. The San

5

Diego Water Board provided USIBWC a list of priority action items derived from

6

that workshop that relate to the operation of the canyon collectors and updates to the

7

Facilities, but, in a March 1, 2018 letter, USIBWC refused to implement any of the

8

proposed action items. Due to the ongoing management, operational and structural

9

deficiencies at the Facilities, these violations will likely continue.

10

FIRST CLAIM FOR RELIEF

11

(Violation of Section 301 of the Clean Water Act; 33 U.S.C. § 1311.)

12

56.

13
14 _

The San Diego Water Board re-alleges and i11corporates herein by this

reference the preceding paragraphs of this Complaint.
57.

The Tijuana River, Tijuana River Estuary, and Pacific Ocean are waters

15

of the United States as defined by Clean Water Act .section 502(7), 33 U.S.C.

16

§1362(7) and 40 C.F.R. §122.2.

17
18
19

58.

USIBWC owns,· operates, controls and/or maintains the Facilities,

including the five canyon collectors along the United States-Mexico border.
59.

On information and belief, USIBWC constructed and designed the

20

canyon collectors in order to direct dry-weather flows from Mexico toward the

21

canyon collectors, capture these flows, and divert them to the Plant for treatment.

22
23
24

60.

The canyon collectors are "point sources" within the. meaning of the

Clean Water Act. 33 U.S.C. § 1362(14).
61.

On at least eleven separate occasions, USIBWC's acts or omissions

25

relating to its operation and maintenance of the canyon collectors resulted in the

26

addition of waste-including sewage, pesticides, heavy metals, and bacteria-into

27

the Tijuana River, Tijuana River Estuary and/or Pacific Ocean. This waste contained

28

numerous pollutants as defined by the Clean Water Act. 33 U.S.C. § 1362(6).
20
Complaint For Declaratory and Injunctive Relief

1

62.

Specifically, on information and belief, by failing to properly maintain

2

the canyon collector inlets and berms, waste that was captured by the canyon

3

collectors and should have been diverted into the inlet and then to the Plant, instead

4

discharged to waters of the United States.

5
6
7
8
9
10
11

63.

These spill events thereby constitute discharges of pollutants (33 U.S.C.

§ 1362(12)), from a point source to waters of the state and United States.
64.

As reported by USIBWC, these twelve spill events occurred during dry

weather, and therefore were not caused by rain.
65.

USIBWC did not and does not possess a NPDES permit that allows for

the discharge of pollutants from the canyon collectors during dry weather.
66.

Based on the frequency of spill events from the Facilities, USIBWC's

12

repeated failure to properly maintain the inlets and berms at its canyon collectors,

13

and these discharges from the canyon collectors will likely continue.

14

67.

Each dayUSIBWC discharged waste from its canyon collectors and into

15

waters of the United States without a permit constituted an independent violation of

16

Section301,33U.S.C.§1311.

17
18
19
20
21

68.

USIBWC also owns, controls and/or maintains the Goat Canyon pump

station.
69.

The Goat Canyon pump station is a point source within the meaning of

the Clean Water Act. 33 U.S.C. § 1362(14).
70.

On February 27, 2018, as a result 'ofUSIBWC's acts or omissions, over

22

fifty thousand gallons of waste from USIBWC's Goat Canyon pump station was

23

released into the Tijuana River, Tijuana River Estuary, and/or the Pacific Ocean.

24

71.

On information and belief, the waste contained several pollutants, as

25

defined. under the Clean \Yater Act, including sewage, garbage, and chemical,

26

industrial, and municipal wastes. 33 U.S.C. § 1362(6).

27
28

72.

The release of waste from Goat Canyon constitutes a discharge of

pollutants (33 U.S.C. § 1362(12)), from a point source and into waters of the state
21
Complaint For Declaratory and Injunctive Relief

1
2

and United States.
73.

There is a reasonable likelihood that the discharge of waste from the

3

Goat Canyon pump station could re-occur given the other repeated discharges caused

4

by USIBWC's failure to properly operate and maintain its Facilities.

5
6
7

74.

USIBWC did not obtaiq a NPDES permit to discharge waste into waters

of the United States from the Goat Canyon pump station.
75.

The unpermitted discharge of waste from USIBWC's pump station and

8

into waters of the United States constitutes a separate violation of Section 301, 33

9

u.s.c. § 1311.

·10

SECOND CLAIM FOR RELIEF

11

(Violation of Section 402 of the Clean Water Act; 33 U.S.C. § 1342.)

12

76.

13
14
15
16
17
18
19
20

The San Diego Water Board re-alleges and incorporates herein by this

reference the preceding paragraphs of this Complaint.
77.

Specifically, the San Diego Water Board alleges that USIBWC

repeatedly violated numerous obligations under its NPDES Permit.
78.

USIBWC repeatedly violated the discharge prohibitions in Section III

of the NPDES Permit.
a)

Section III permits the discharge of waste only from the South

Bay Ocean Outfall. It prohibits all other discharges.
b)

In eleven instances, described in Table A above, USIBWC

21

reported that dry-weather, transboundary flows were captured by the canyon

22

collectors, but not diverted to the Plant. Instead, on information and belief, due to

23

USIBWC's acts·and/or omissions, these flows overran the canyon collectors and

24

discharged to state lands and waters of the United States.

25

c)

In addition, through USIBWC's acts and/or omissions, and on

26

information and belief, USIBWC failed to properly maintain the Goat Canyon pump

27

station and, as a result, over fifty thousand gallons of waste was discharged from the

28

Goat Canyon pump station and onto state lands and waters of the United States.
22
Complaint For Declaratory and Injunctive Relief

1

d)

Each of these discharge events are detailed in Table A, and none

2

resulted in discharges at the South Bay Ocean Outfall, as required by Section III of

3

the NPDES Permit.

4
5

.e)

This waste contained pollutants as defined by the Clean Water

f)

Accordingly, all twelve discharges described in Table A resulted

Act.

·6
7

in separate violations of USIBWC's NPDES Permit's discharge prohibitions, and

8

each constitute independent violations of Section 402, 33 U.S.C. § 1342.

9

g)

USIBWC's discharge of waste through its canyon collectors and

10

the Goat Canyon pump station into waters of the United States date back to 2015 and

11

continued through 2018. On information and belief, throughout this time USIBWC

12

failed to properly operate and maintain these facilities or to ensure similar d_ischarges

13

could be prevented in the future. Accordingly, there is a reasonable likelihood that

14

these discharges will continue until USIBWC fully complies with its NPDES Permit

15

obligations.

16

h)

Each of these discharges further violated the San Diego Basin

17

Plan water quality requirements incorporated into the NPDES Permit.

18

information and belief, through its acts or omissions, each of USIBWC' s discharges

19

of waste described above adversely impaired the water quality of the Tijuana River,

20

Tijuana River Estuary, and the Paci.fie Ocean and posed serious public health threats

21

to the surrounding community.

22

i)

23

On

The impaired water quality thereby impacted the beneficial uses

of the waters of state and the United States and impaired the enjoyment of the same.

24

j)

These discharges therefore caused or threatened to cause a

25

condition of pollution, contamination, or nuisance, as defined in California Water

26

Code§ 13050 (k), (!), (m), in a separate violation of the NPDES Permit's discharge

27

prohibition requirements.

28

79.

USIBWC also violated its monitoring and reporting obligations set forth
23
Complaint For Declaratory and Injunctive Relief

1

in Section VI.Band Attachment E of the NPDES Permit.

2

a)

For all Type A discharges, USIBWC was required to monitor the

3

waste discharged, test each sample for certain parameters and report those findings

4

to the San Diego Water Board.

5

b) USIBWC failed to monitor any of the eleven Type A discharges

6

at-issue in this Complaint. On three separate occasions-March 1, 2017, May 24,

7

2017, and April 30, 2017-USIBWC utterly failed to monitor and report

8

transboundary flows released from canyon collec_tors during dry weather conditions.

9

c)

In addition, for the remaining eight discharge events-on January

10

29, September 5, and November 29, 2016 and March 1, April 24, April 30, May 21,

11

May 24, June 27, October 6, and October 19, 2017-USBIWC failed to adequately

12

test or report wastewater testing samples for all the required parameters of waste

13

discharged at the canyon collectors.

14

d) Each instance that USIBWC failed to monitor and report a

15

transboundary flow constitutes an independent violation of the NPDES Permit and

16

therefore Section 402, 33 U.S.C. § 1342.

17

e)

Due to USIBWC's repeated failure to adequately monitor and/or

18

report trans boundary flows, there is a reasonable likelihood that USIBWC will

19

continue to violate this NPDES Permit requirement for future spills.

20

80.

Further, USIBWC violated Section VI.C.2 of the NPDES Permit

21

because it failed· to implement the Prevention/Response Plan to recover waste

22

discharged from its canyon collectors during dry-weather spill events and from its

23

pump stations.

24
25
26
27
28

a)

USIBWC was required to implement its Prevention/Response

Plan on July 13, 2015.
b) The Prevention/Response Plan required USIBWC to recover
wastewater discharged by its Facilities.
c)

Eleven of the discharges described in Table A occurred after July
24
Complaint For Declaratory and Injunctive Relief

1

13, 2015.

2

d)

On information and belief, USIBWC did not implement its

3

Prevention/Response Plan for any of these spill events. Specifically, USIBWC failed

4

to take any of the measures identified in its Prevention/Response Plan regarding

5

containment or cleanup, nor did USIBWC recover a single gallon of waste from.these

6

spill events.

7

e)

Each instance where USIBWC failed to implement its

8

Prevention/Response Plan is a violation of the NPDES Permit. Each violation of

9

USIBWC's NPDES Permit constitutes an independent violation of Section 402, 33

IO

U.S.C. § 1342. Based on USIBWC's failure to implement its Prevention/Response

11

Plan for a single spill event, these violations will likely continue in the future.

12

81.

On information and belief, the discharge events from the canyon

13

collectors and Goat Canyon pump station contributed to violations of the NPDES

14

Permit receiving water limitations established in Section V and Attachment E of the

15

permit.

16

a)

The wastewater sampled by USIBWC during discharge events at

17

the canyon collectors was tested for the presence and concentration of specific

18

bacteria and other chemicals.

19

concentrations of enterococcus and fecal coliform bacteria.

20
21
22

b)

The results from this testing revealed elevated

On information and belief, these same discharges entered the

Tijuana River, Tijuana River Estuary, and ultimately the Pacific Ocean.
c)

Testing of samples taken at monitoring stations within the Pacific

23

Ocean revealed violations of receiving water limitations, established by the NPDES

24

Permit, for enterococcus on June 27, 2017, and bacteria during the months of January

25

2016, September 2016, March through June 2017, and October 2017.

26
27
28

d)

On information and belief, the discharge events described_ above

caused or contributed to these exceedances of the receiving water limitations.
e)

Each exceedance of a receiving water limitation constitutes an
25
Complaint For Declaratory and Injunctive Relief

1

independent violation of the NPDES Permit and therefore Section 402, 33 U.S.C. §

2

1342.
PRAYER FOR RELIEF

3

4
5

WHEREFORE, the San Diego Water Board requests this Court to enter a
judgment:

6
7
8.
9
10

1.

Declaring that USIBWC's eleven discharges of waste from its canyon

collectors constitute violations of Clean Water Act sections 301 and/or 402.
2. Declaring that USIBWC's discharge of waste from its Goat Canyon pump
station constitutes a violation of Clean Water Act sections 301 and/or 402.
3. Declaring that USIBWC violated the terms of its NPDES Permit by:

11

a. Causing or threatening to cause a condition of pollution,

12

contamination, or nuisance through its discharges of waste into waters of the United

13

States;

14
15

b. Failing to collect samples arid monitor for all required parameters for
all eleven Type A discharges from its canyon coll~ctors identified in Table A.

16

c. Failing to implement its Prevention/Response Plan to prevent and

17

recover waste from any of the discharge events that occurred at the canyon collectors

18

or the Goat Canyon pump station.

19
20
21
22

d. Exceeding receiving water limitations imposed by the NPDES Permit
for enterococcus and fecal coliform bacteria.
4. Declaring that each of the NPDES Permit violations; cited above, are
ongomg.

23

5. Ordering USIBWC to take all actions necessary to comply with the Clean

24

Water Act and the NPDES Permit, including properly operating and maintaining its

25

Facilities to avoid any flows past its existing canyon collectors, properly maintaining

26

its Facilities to avoid any future pump station or other Facility failures, properly

27

implement the monitoring program in the NPDES Permit and creating and

28

implementing a response plan as stated in the NPDES Permit.
26
C~mplaint For Declaratory and Injunctive Relief

1

6. Awarding the San Diego Water Board its costs of litigation, including

2

reasonable attorneys' fees, incun-ed in prosecuting this action, pursuant to 28 U.S.C.

3

§ 2412, and Clean Water Act section 505(d), 33 U.S.C. § 1365(d) and all applicable

4

law.

5

7. All other relief deemed appropriate by this Court.

6
7

Dated: September 4., 2018

Respectfully Submitted,
XAVIER B ECERRA

8

Attorney General of California
MICHAELP. CAYABAN

9

Supervising Deputy Attorney General

10
11

12
13
14
15
16

SD201810095 1
82053 192.DOCX

17

18
19

20
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22
23
24
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26
27

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Complaint For Declaratory and Injunctive Relief