Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 1 of 18

1 Jason R. Flanders (Bar No. 238007)

Erica A. Maharg (Bar No. 279396)
2 Aqua Terra Aeris (ATA) Law Group
490 43rd Street, Suite 108
3 Oakland, California 94609
Telephone: (510) 473-8793
4 Email: jrf@atalawgroup.com
Email: eam@atalawgroup.com
5
6 Daniel Cooper (Bar No. 153576)
Cooper & Lewand-Martin, Inc.
7 1004-B O’Reilly Avenue
San Francisco, California 94129
8 Telephone: (415) 360-2962
Email: daniel@cooperlewand-martin.com
9
Christopher Len (Bar No. 257052)
10 Nicole C. Sasaki (Bar No. 298736)
11 SAN FRANCISCO BAYKEEPER
1736 Franklin Street, Suite 800
12 Oakland, California 94612
Telephone: (510) 735-9700
13 Facsimile: (510) 735-9160
Email: chris@baykeeper.org
14 Email: nicole@baykeeper.org
15
Attorneys for Plaintiff
16 SAN FRANCISCO BAYKEEPER

17 UNITED STATES DISTRICT COURT

18
NORTHERN DISTRICT OF CALIFORNIA
19
SAN JOSE DIVISION
20
SAN FRANCISCO BAYKEEPER, a California Civil Case No.:
21 non-profit corporation,
COMPLAINT FOR DECLARATORY
22 AND INJUNCTIVE RELIEF AND
Plaintiff,
CIVIL PENALTIES
23
v. (Federal Water Pollution Control Act,
24 33 U.S.C. § 1251 et seq.)
CITY OF MOUNTAIN VIEW, a municipality;
25 MOUNTAIN VIEW FIRE DEPARTMENT, a
municipal department; and MOUNTAIN VIEW
26
PUBLIC WORKS DEPARTMENT, a municipal
27 department,

28 Defendants.

Complaint 1
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1 San Francisco Baykeeper (“Baykeeper” or “Plaintiff”), by and through its counsel, hereby
2 alleges:

3 I. INTRODUCTION
4 1. This is a civil action brought under the citizen suit enforcement provisions of the Federal
5 Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (“Clean Water Act” or “CWA”), to address the
6 unlawful discharge of bacteria pollution by the Defendant City of Mountain View and its Fire
7 Department and Public Works Department (collectively, “Mountain View” or “the City”) from the
8 City’s municipal separate storm sewer system (“MS4”). Mountain View’s repeated and ongoing
9 violations of the Municipal Regional Stormwater NPDES Permit, NPDES Permit No. CAS612008,
10 Order No. R2-2015-0049, California Regional Water Quality Control Board San Francisco Bay Region
11 (“MS4 Permit” or “Permit”), have adversely affected the water quality and beneficial uses of local
12 waterways, including Stevens Creek and South San Francisco Bay. Baykeeper seeks a declaratory
13 judgment, injunctive relief, the imposition of civil penalties, and an award of costs, including attorney
14 and expert witness fees, for these violations.
15 II. JURISDICTION AND VENUE
16 2. This Court has subject matter jurisdiction over the parties and this action pursuant to 33
17 U.S.C. § 1365(a)(1) (the Clean Water Act citizen suit provision), 28 U.S.C. § 1331 (an action arising
18 under the laws of the United States), and 28 U.S.C. § 2201 (declaratory relief).
19 3. On December 4, 2019, Baykeeper provided notice of intent to file suit against Mountain
20 View for its violations of the Clean Water Act (“Notice Letter”) pursuant to 33 U.S.C. § 1365(b).
21 4. As required by 40 C.F.R. § 135.2(a)(2), Baykeeper sent the Notice Letter to the owners
22 and operators of the City of Mountain View municipal separate storm sewer system (“Mountain View
23 MS4”) and the owners and operators of the City of Mountain View sewage collection system
24 (“Collection System”); specifically, the Mountain View City Manager, Fire Chief, and the Director of
25 the Public Works Department. Baykeeper also sent the Notice Letter to the Administrator of the United
26 States Environmental Protection Agency (“EPA”), the Administrator of EPA Region IX, the Executive
27 Director of the State Water Resources Control Board (“State Board”), and the Executive Officer of the
28 Regional Water Quality Control Board, San Francisco Bay Region (“Regional Board”) (collectively,

Complaint 2
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1 “State and Federal agencies”), as required by section 505(b) of the CWA, 33 U.S.C. § 1365(b)(1)(A).
2 The Notice Letter is attached as Appendix A and is incorporated herein by reference.

3 5. More than sixty (60) days have passed since the Notice Letter was mailed to Mountain
4 View and the State and Federal agencies.
5 6. Baykeeper is informed and believes, and thereon alleges, that neither EPA nor the State
6 of California has commenced or is diligently prosecuting an action to redress the violations alleged in
7 the Notice Letter and in this Complaint. See 33 U.S.C. § 1365(b)(1)(B). This action is not barred by any
8 prior administrative penalty under section 309(g) of the CWA, 33 U.S.C. § 1319(g).
9 7. Venue is proper in the Northern District of California pursuant to section 505(c)(1) of the
10 CWA, 33 U.S.C. § 1365(c)(1), because the source of the violations is located within this judicial district.
11 III. INTRADISTRICT ASSIGNMENT
12 8. Pursuant to L.R. 3-2(c) and (e), intradistrict assignment of this matter to the San Jose
13 Division of the Court is appropriate because the events or omissions which give rise to Plaintiff’s claims
14 occurred in Santa Clara County. No event or omission giving rise to Baykeeper’s claims occurred within
15 the jurisdiction of any other Division of this Court.
16 IV. PARTIES
17 A. San Francisco Baykeeper
18 9. Plaintiff Baykeeper is a non-profit public benefit corporation organized under the laws of

19 the State of California with its main office in Oakland, California. Baykeeper’s approximately 3,500

20 members live and/or recreate in and around the San Francisco Bay area. Baykeeper’s mission is to

21 protect San Francisco Bay from the biggest threats and hold polluters accountable. Baykeeper patrols on

22 the water, investigates and stops polluters, and strengthens laws that protect the Bay. Baykeeper is

23 dedicated to preserving, protecting, and defending the environment, wildlife, and natural resources of

24 San Francisco Bay and its tributaries for the benefit of its ecosystems and communities. Baykeeper

25 furthers its goals through education, advocacy, restoration, and directly initiates enforcement of

26 environmental laws on behalf of itself and its members.

27 10. Baykeeper’s office is located at 1736 Franklin Street, Suite 800, Oakland, California

28 94612.

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1 11. Baykeeper has over 3,500 members who use and enjoy San Francisco Bay, its tributaries,
2 and other waters for various recreational, educational, scientific, conservation, aesthetic, spiritual and

3 other purposes.
4 12. Baykeeper’s members, including citizens, taxpayers, property owners, and residents, live,
5 work, and travel near, and recreate in, San Francisco Bay and its tributaries and recreate in or near the
6 Bay shoreline and waters into which Mountain View discharges pollutants, including, but not limited to,
7 South San Francisco Bay, Stevens Creek, and other waters that drain to South San Francisco Bay
8 (collectively, the “Receiving Waters”).
9 13. Baykeeper’s members use and enjoy the Receiving Waters and the adjacent areas to the
10 waters to sail, swim, windsurf, stand up paddleboard, picnic, fish, and hike; to conduct scientific study
11 and research; for aesthetic enjoyment; and to enjoy wildlife.
12 14. Mountain View’s failure to comply with the substantive requirements of the MS4 Permit
13 and/or the Clean Water Act, including but not limited to Mountain View’s discharge of polluted
14 stormwater, polluted dry-weather flows, raw sewage, and other pollutants via the Mountain View MS4
15 to the Receiving Waters, as well as Mountain View’s failure to develop and implement programs to
16 effectively control and monitor these discharges, negatively impacts and impairs Baykeeper’s members’
17 use and enjoyment of the Receiving Waters and the adjacent areas.
18 15. The interests of Baykeeper’s members have been, are being, and will continue to be
19 adversely affected by Mountain View’s failure to comply with the Clean Water Act and the MS4 Permit.
20 The relief sought herein will redress the harms to Plaintiff caused by Mountain View’s activities.
21 16. Continuing commission of the acts and omissions alleged herein will irreparably harm
22 Baykeeper’s members, for which harm they have no plain, speedy, or adequate remedy at law.
23 17. Baykeeper has one or more members who use, explore, and recreate in areas impacted by
24 the stormwater pollution herein at issue and could sue in their own right. Some of Baykeeper’s
25 members will suffer recreational, aesthetic, or other environmental injuries due to Mountain View’s
26 pollution. Baykeeper’s members use and enjoy South San Francisco Bay and Stevens Creek for
27 recreational, scientific, and aesthetic purposes and would reasonably cease these activities should South
28 San Francisco Bay’s water quality become too degraded. Baykeeper’s injuries-in-fact are fairly

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1 traceable to Mountain View’s conduct and would be redressed by the requested relief.
2 18. Neither the claims brought by Baykeeper nor the relief Baykeeper requests requires the

3 participation of individual members.

4 B. The City of Mountain View
5 19. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View
6 is a municipality formed under the laws of the State of California.
7 20. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View
8 maintains offices at 500 Castro Street, Mountain View, California 94041.
9 21. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View,
10 its Fire Department, and/or its Public Works Department are the owners of the Mountain View MS4.
11 22. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View,
12 its Fire Department, and/or its Public Works Department are the operators of the Mountain View MS4.
13 23. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View,
14 its Fire Department, and/or its Public Works Department are the owners of the Mountain View
15 Collection System.
16 24. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View,
17 its Fire Department, and/or its Public Works Department are the operators of the Mountain View
18 Collection System.
19 V. LEGAL BACKGROUND
20 A. The Clean Water Act
21 25. Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), prohibits the discharge of
22 any pollutant into waters of the United States unless the discharge complies with various enumerated
23 sections of the CWA. Specifically, section 301(a) prohibits discharges not authorized by, or in violation
24 of, the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit issued pursuant
25 to section 402 of the CWA, 33 U.S.C. § 1342.
26 26. The “discharge of a pollutant” means, among other things, the addition of a pollutant to
27 “waters of the United States” from any “point source.” 33 U.S.C. § 1362(12); 40 C.F.R. § 122.2.
28 27. The term “pollutant” includes “dredged spoil, solid waste, incinerator residue, sewage,

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1 garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,
2 wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste

3 discharged into water.” 33 U.S.C. § 1362(6); 40 C.F.R. § 122.2.

4 28. “Waters of the United States” are defined as “navigable waters,” and “all waters which
5 are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce,
6 including waters which are subject to the ebb and flow of the tide.” 33 U.S.C. § 1362(7); 40 C.F.R.
7 § 122.2.
8 29. The term “point source” means any “discernible, confined and discrete conveyance,
9 including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,
10 rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which
11 pollutants are or may be discharged.” 33 U.S.C. § 1362(14); 40 C.F.R. § 122.2.
12 30. An MS4 is defined as “a conveyance or system of conveyances (including roads with
13 drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm
14 drains)” owned or operated by a State, city, or town that is “designed or used for collecting or conveying
15 storm water” and “that discharges to waters of the United States.” 40 C.F.R. § 122.26(b)(8); see also id.
16 § 122.26(b)(18).
17 31. Section 402(b) of the CWA, 33 U.S.C. § 1342(b), allows each state to administer its own
18 EPA-approved NPDES permit program for regulating the discharge of pollutants, including discharges
19 of polluted stormwater.
20 32. In California, the State Board and its nine Regional Boards have approval from EPA to
21 administer its NPDES permit program for the State. Under this authority, the State Board and Regional
22 Boards issue NPDES permits in the State to regulate water pollutant discharges.
23 33. Section 402(p) of the CWA, 33 U.S.C. § 1342(p), requires an NPDES permit for
24 stormwater discharges from an MS4 to waters of the United States.
25 34. Section 402(p)(3)(B) requires NPDES permits for discharges from MS4s to effectively
26 prohibit non-stormwater discharges into storm sewers and to include “controls that reduce the discharge
27 of pollutants [to receiving waters] to the maximum extent practicable, […] and such other provisions as
28 the Administrator or the State determines appropriate for the control of such pollutants.” 33 U.S.C. §

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1 1342(p)(3)(B).
2 35. The MS4 Permit is an NPDES permit issued by the Regional Board pursuant to section

3 402(p) of the CWA, 33 U.S.C. § 1342(p).

4 36. Violations of the MS4 Permit are also violations of the CWA. MS4 Permit, Attachment
5 G, Paragraph C.2; see also MS4 Permit, Section C.19 (stating that permittees must comply with the
6 standard provisions in Attachment G).
7 37. Section 505(a)(1) of the CWA, 33 U.S.C. § 1365(a)(1), provides for citizen enforcement
8 actions against any “person” for violations of NPDES permit requirements and for unpermitted
9 discharges of pollutants. See 33 U.S.C. §§ 1365(a)(i), 1365(f).
10 38. The City of Mountain View is a “person” within the meaning of section 502(5) of the
11 CWA, 33 U.S.C. § 1362(5).
12 39. An action for injunctive relief is authorized under section 505(a) of the CWA, 33 U.S.C.
13 § 1365(a).
14 40. Each separate violation of the Clean Water Act subjects the violator to a penalty of up to
15 $37,500.00 per day for violations occurring between October 25, 2014 and November 1, 2015, and
16 $54,833.00 per day per violation for violations that occurred after November 2, 2015. 33 U.S.C. §
17 1319(d); Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. §§ 19.1-19.4.
18 41. Section 505(d) of the CWA, 33 U.S.C. § 1365(d), permits prevailing or substantially
19 prevailing parties to recover litigation costs, including attorneys’ fees, experts’ fees, and consultants’
20 fees.
21 B. The MS4 Permit’s Discharge Prohibitions and Receiving Water Limitations
22 42. The MS4 Permit regulates discharges to and from municipal storm sewer systems
23 throughout the San Francisco Bay Area, including the Mountain View MS4.
24 43. Mountain View is subject to the terms and conditions of the MS4 Permit.
25 44. The MS4 Permit allows Mountain View to discharge stormwater runoff from storm
26 drains and other stormwater conveyances within its jurisdiction, if the discharges comply with the
27 discharge prohibitions, receiving water limitations, and all other requirements of the MS4 Permit.
28 45. Discharge Prohibition A.1. of the MS4 Permit requires that Mountain View effectively

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1 prohibit discharges of non-stormwater into the Mountain View MS4 and into watercourses.
2 46. Receiving Water Limitation B.1. of the MS4 Permit prohibits certain discharges that

3 create a condition of nuisance or adversely affect beneficial uses of State waters.

4 47. Receiving Water Limitation B.2. of the MS4 Permit prohibits discharges that cause or
5 contribute to a violation of any applicable water quality standard for receiving waters.
6 48. Beneficial uses of waterways are the resources, services, and qualities of these aquatic
7 systems that are the ultimate goals of protecting and achieving high water quality. Water Quality Control
8 Plan, San Francisco Basin (Region 2) (“Basin Plan”), Chapter 2.
9 49. Water quality standards (“WQS”) include pollutant concentration levels determined by
10 the State Board, the various Regional Boards, and the EPA to be protective of the beneficial uses of the
11 waters that receive polluted discharges.
12 50. The WQS applicable to Mountain View include, but are not limited to, those set out in (1)
13 the Regional Board’s Basin Plan, Chapter 3; (2) Part 3 of the State Board’s Water Quality Control Plan
14 for Inland Surface Waters, Enclosed Bays and Estuaries of California: Bacteria Provisions and a Water
15 Quality Standards Variance Policy (“Bacteria Provisions”); and (3) EPA’s Criteria for Priority Toxic
16 Pollutants for the State of California (“California Toxics Rule”), 40 C.F.R. § 131.38.
17 51. Discharges above applicable WQS contribute to the impairment of the Receiving Waters’
18 beneficial uses.
19 VI. FACTUAL BACKGROUND
20 A. Mountain View MS4 and Discharges of Bacteria

21 52. The Mountain View MS4 consists of the streets, curbs, gutters, drop inlets, underground

22 pipes, concrete channels, and other structures that collect and convey stormwater and non-stormwater in

23 and around the City of Mountain View.

24 53. The Mountain View MS4 includes approximately 117.5 miles of storm drain pipes.

25 54. The storm drain pipes and other conveyances in the Mountain View MS4 connect

26 directly to the Receiving Waters.

27 55. Discharges from the Mountain View MS4 are not treated prior to entering the Receiving

28 Waters.

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1 56. Mountain View is responsible for ensuring that discharges to and from the Mountain
2 View MS4 do not violate the MS4 Permit. While operating and maintaining the Mountain View MS4,

3 Mountain View is responsible for collecting and conveying stormwater through the MS4, preventing
4 non-stormwater materials (including raw sewage exfiltrating from the Collection System) from entering
5 the Mountain View MS4, conducting routine maintenance, cleaning and inspecting the Mountain View
6 MS4, and responding to citizen complaints related to the storm drain system.
7 57. Each time it rains, polluted stormwater from streets, sidewalks, parking lots, and other
8 urban infrastructure in Mountain View discharge directly to the Receiving Waters via the Mountain
9 View MS4. Non-stormwater flows also discharge from the Mountain View MS4 to the Receiving
10 Waters.
11 58. Fecal indicator bacteria in concentrations above the water quality objectives for E. Coli,
12 enterococci, fecal coliform, and total coliform (collectively, “Bacteria”) adversely affect the aquatic
13 organisms, people consuming those organisms or water, and the current or potential beneficial uses of
14 the Receiving Waters.
15 59. Targeted epidemiological studies have shown a number of adverse health outcomes
16 associated with fecally-polluted water resulting in a significant burden of disease and economic loss.
17 Studies conducted worldwide have correlated gastrointestinal symptoms to recreating in water with high
18 Bacteria counts. California-specific studies show a higher incidence of upper respiratory and
19 gastrointestinal symptoms associated with swimming in the vicinity of storm drains contaminated with
20 high Bacteria counts.
21 60. Mountain View discharges bacteria from the MS4 every time precipitation causes runoff
22 in the Mountain View MS4.
23 B. Mountain View’s Collection System and Discharges of Raw Sewage
24 61. Mountain View’s Collection System is comprised of the Palo Alto Regional Water
25 Pollution Control Plant (“Plant”) and the City of Mountain View’s Collection System. The Plant is
26 owned and operated by the City of Palo Alto, and is under a joint powers agreement between Palo Alto,
27 Mountain View, and Los Altos. The wastewater conveyed to the Plant is then treated and subsequently
28 discharged to the Renzel Marsh Pond, which drains into Matadero Creek, the Palo Alto Flood Basin, and

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1 then into South San Francisco Bay near the Palo Alto Airport. The Collection System is a point source
2 under the Clean Water Act. See 33 U.S.C. § 1362(14).

3 62. The Collection System consists of approximately 160 miles of gravity sewer pipes. The
4 Collection System pipes range in size from 4 to 42 inches in diameter. The Collection System includes 1
5 mile of 42-inch force main. The Collection System includes two (2) pump stations. At least 57 percent
6 of the existing sanitary sewer mains in the Collection System are older than 20 years old. At least 26
7 percent of the existing sanitary sewer mains in the Collection System are older than 60 years old.
8 Approximately 38 percent of the sanitary sewer segments in the Collection System do not have recorded
9 ages.
10 63. Data available to Baykeeper indicates 89 percent of the system is comprised of vitrified
11 clay pipes. Vitrified clay pipes are susceptible to cracking and leakage.
12 64. Mountain View is responsible for operating and maintaining the Collection System. To
13 operate the Collection System, Mountain View undertakes tasks such as, but not limited to, collecting
14 and conveying raw sewage through the Collection System, conducting routine maintenance, cleaning
15 and inspecting the Collection System, designing and implementing necessary capital improvements, and
16 responding to sanitary sewer overflows (“SSOs”).
17 65. Raw sewage discharges, or exfiltrates, from the Collection System underground via
18 structural defects, such as cracks, displaced joints, holes, and other leakage points, in the Collection
19 System. Raw sewage that exfiltrates from the Collection System in areas where the Collection System is
20 in proximity to the Mountain View MS4 has the potential to enter the MS4 via cracks, displaced joints,
21 and other compromised portions of the MS4. Raw sewage that reaches the Mountain View MS4 through
22 exfiltration flows untreated to the Receiving Waters.
23 66. Raw sewage discharges from the Collection System to the MS4 via SSOs. SSOs have
24 many causes including, but not limited to, blockages in the pipes caused by roots, grease and foreign
25 debris, as well as structural damage to pipes such as off-set joints and broken pipes. SSOs can also be
26 caused by inadequate flow capacity. SSOs discharge from manholes, clean outs, or other surface
27 structures of the Collection System or private laterals.
28 ///

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1 C. The Receiving Waters

2 67. The storm drain pipes and other conveyances in the Mountain View MS4 discharge to

3 Stevens Creek and other local waterbodies that are tributaries to these waters.
4 68. Stevens Creek flows from Stevens Creek Reservoir, northward for a total of 12.5 miles
5 through the foothills in the cities of Cupertino and Los Altos, across the alluvial plain through the cities
6 of Sunnyvale and Mountain View and then discharges into South San Francisco Bay north of Moffett
7 Field Naval Air Station.
8 69. Stevens Creek is an important ecological resource, as it is one of the last remaining viable
9 habitats for federally-threatened Central California Coast Steelhead. The federally-endangered
10 California clapper rail and salt marsh harvest mouse live in the brackish reaches of the Creek. There is a
11 conservation area dedicated to the western burrowing owl, a species of concern under the Migratory
12 Bird Treaty Act, where Stevens Creek reaches South San Francisco Bay.
13 70. San Francisco Bay (“Bay”) is an ecologically-sensitive waterbody and a defining feature
14 of Northern California. The Bay is an important and heavily-used resource, with special aesthetic and
15 recreational significance for people living in the surrounding communities. Aquatic sports are very
16 popular in the Bay. The Bay shoreline has numerous highly-valued lagoons with beaches and public
17 access that offer unique recreational opportunities for swimmers, kayakers, stand up paddleboarders, and
18 windsurfers. The large-scale urbanization of the Bay Area makes these recreational and aesthetic uses
19 critically important to the quality of life of Bay Area residents.
20 71. San Francisco Bay’s water quality is impaired and continues to decline. The Bay’s once-
21 abundant and varied fisheries have been drastically diminished by pollution, and much of the wildlife
22 habitat of the Bay has been degraded.
23 72. The Basin Plan designates beneficial uses and water quality objectives for waters
24 receiving discharges from the Collection System and Mountain View MS4.
25 73. The existing beneficial uses for Stevens Creek include: freshwater replenishment,
26 groundwater recharge, cold freshwater habitat, fish migration, preservation of rare and endangered
27 species, fish spawning, warm freshwater habitat, wildlife habitat, water contact recreation, and
28 noncontact water recreation.

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1 74. The existing beneficial uses for South San Francisco Bay include: estuarine habitat,
2 industrial service supply, commercial and sport fishing, shellfish harvesting, wildlife habitat,

3 preservation of rare and endangered species, water contact recreation, noncontact water recreation, fish
4 migration, fish spawning, and navigation.
5 75. The Receiving Waters are also listed on the State of California’s 2014-2016 Clean Water
6 Act Section 303(d) list of impaired waterbodies.
7 76. A waterbody that is impaired exceeds WQS and does not support the designated
8 beneficial uses for that waterbody. Based upon available sampling data and agency resources, the
9 Regional Board lists a waterbody as impaired under CWA section 303(d).
10 77. Stevens Creek is listed as impaired for trash and water column toxicity.
11 78. South San Francisco Bay is listed as impaired for chlordane,
12 dichlorodiphenyltrichloroethane (“DDT”), dieldrin, dioxin compounds, furan compounds, invasive
13 species, mercury, polychlorinated biphenyls (“PCBs”), and selenium.
14 D. Impacts to the Receiving Waters from Mountain View’s CWA Violations
15 79. High Bacteria concentrations in surface waters can be directly attributed to discharges
16 from urban stormwater systems.
17 80. Urban stormwater runoff and dry-weather discharges are recognized sources of
18 pollutants, including human fecal matter.
19 81. Stormwater outfalls are a significant pathway for Bacteria loading into surface waters.
20 82. Pollutants from the Mountain View MS4, as well as raw sewage and associated pollutants
21 from the Collection System and/or from privately-owned lateral sewer lines that enter the MS4 via
22 exfiltration or other means, are discharged to the Receiving Waters.
23 83. The discharge of urban stormwater, dry-weather discharges, and raw and/or inadequately-
24 treated sewage via Mountain View’s MS4 adversely affects the beneficial uses of the Receiving Waters
25 and poses a serious risk to fisheries, wildlife habitat, and human health.
26 84. Raw sewage contains human waste, viruses, protozoa, mold spores, Bacteria, and
27 chemicals that cause cancer or reproductive toxicity. These chemicals come from solvents, detergents,
28 cleansers, inks, pesticides, paints, pharmaceuticals, and other chemicals used by households and

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1 businesses and discarded to sewage collection systems. Exfiltrating raw sewage enters the Mountain
2 View MS4 and then subsequently flows directly or with stormwater to surface waters, resulting in the

3 addition of these pollutants to the Receiving Waters.

4 85. Information available to Baykeeper indicates the presence of Bacteria in the Receiving
5 Waters following modest storm events and even during dry weather at concentrations orders of
6 magnitude greater than WQS for water contact recreation for E. Coli, enterococci, fecal coliform, and
7 total coliform.
8 86. Contaminated streams run through many of Mountain View’s parks, posing public health
9 threats, particularly to children, and significantly diminishing recreation-based beneficial uses.
10 87. The intensive use of the Bay and its tributaries for commercial and sport fishing, shellfish
11 harvesting, and water-contact recreation increases the likelihood that people will come into direct
12 contact with the raw sewage and other pollutants discharged by Mountain View.
13 88. Untreated raw sewage also affects people who eat fish caught in these waters. Toxic
14 chemicals bio-accumulate in the Bay’s food web, i.e., contaminants absorbed by plankton accumulate in
15 fish and birds farther up the food chain and ultimately transfer to human consumers. Contaminated fish
16 are particularly damaging to ethnic and economic minority communities, who eat a greater-than-average
17 amount of locally-caught fish.
18 89. The pollutants impairing Stevens Creek and South San Francisco Bay are found in
19 discharges of raw and/or inadequately-treated sewage.
20 90. By discharging urban stormwater runoff, dry-weather non-stormwater discharges, and
21 raw and/or inadequately-treated sewage and associated pollutants into the Mountain View MS4 that
22 directly leads to the Receiving Waters, which are waters of the United States, in violation of the Clean
23 Water Act, Mountain View has contributed and continues to contribute to the continuing impairment of
24 these waters.
25 E. Mountain View’s Violations of the MS4 Permit
1. Failure to Effectively Prohibit Discharges of Non-Stormwater to and from
26
the Mountain View MS4
27 91. Urban stormwater, dry-weather discharges, and other non-stormwater discharges
28 regularly discharge into the Mountain View MS4 and Receiving Waters.

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1 92. Raw sewage regularly discharges from the Collection System to the Mountain View MS4
2 and Receiving Waters via exfiltration.

3 93. Raw sewage discharges, or exfiltrates, from the Collection System underground via
4 cracks, displaced joints, holes, and other leakage points in the Collection System. Some of the raw
5 sewage that exfiltrates from the Collection System in areas where the Collection System is in proximity
6 to the Mountain View MS4 enters the Mountain View MS4 via cracks, displaced joints, and other
7 compromised portions of the Mountain View MS4.
8 94. Information available to Baykeeper indicates there is a high risk of exfiltration from the
9 Collection System to the Mountain View MS4 wherever a compromised sewer pipe is located above and
10 within five meters laterally of a compromised section of storm drain pipe.
11 95. Information available to Baykeeper indicates that raw sewage exfiltrates from the
12 Collection System and enters the Mountain View MS4 every day.
13 96. Raw sewage that enters the storm drain pipe via exfiltration is a non-stormwater
14 discharge to the MS4.
15 97. Mountain View is not effectively prohibiting discharges of raw sewage to the MS4 via
16 exfiltration.
17 98. Raw sewage that reaches the Mountain View MS4 through exfiltration flows untreated to
18 the Receiving Waters.
19 99. Mountain View discharges non-stormwater to the Receiving Waters when raw sewage
20 that enters the MS4 via exfiltration is subsequently discharged from the MS4.
21 8. Illegal Discharges of Bacteria from the MS4

22 100. Data available to Baykeeper demonstrates that discharges from the Mountain View MS4

23 contain elevated concentrations of pollutants such as total coliform, fecal coliform, E. Coli, and

24 enterococci at levels exceeding applicable WQS by orders of magnitude. See Exhibit A to Notice Letter

25 (Table 1 listing results of water quality monitoring).

26 101. Data available to Baykeeper demonstrates that dry-weather non-stormwater discharges

27 from the Mountain View MS4 contain elevated concentrations of pollutants such as E. Coli and

28 enterococci at levels exceeding applicable WQS by orders of magnitude. See Exhibit A to Notice Letter

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1 (Table 1 listing results of water quality monitoring and sampling conditions).

2 102. Discharges with elevated levels of Bacteria and other pollutants adversely affect the

3 beneficial uses of the Receiving Waters.

4 103. Mountain View’s discharges from its MS4 outfalls with concentrations of pollutants such
5 as total coliform, fecal coliform, E.coli, and enterococci in exceedance of WQS demonstrate that
6 Mountain View’s discharges cause or contribute to a violation of an applicable WQS.
7 VII. CLAIMS FOR RELIEF
8 FIRST CAUSE OF ACTION
9 Illegal Discharges of Non-Stormwater
MS4 Permit, Discharge Prohibition A.1.
10 33 U.S.C. §§ 1311(a), 1342
11 104. Plaintiff incorporates the allegations contained in the above paragraphs as though fully

12 set forth herein.

13 105. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s

14 discharges of dry-weather non-stormwater discharges and raw sewage via exfiltration to the Mountain

15 View MS4 are ongoing and continuous.

16 106. Mountain View’s discharges from the Mountain View MS4 to Receiving Waters of dry-

17 weather non-stormwater and raw sewage via exfiltration are ongoing and continuous.

18 107. Baykeeper is informed and believes, and thereon alleges, that each of these discharges is

19 itself a violation of Discharge Prohibition A.1. of the MS4 Permit and the Clean Water Act.

20 108. Baykeeper is further informed and believes, and thereon alleges, that these discharges

21 demonstrate that Mountain View fails to effectively prohibit discharges into and from its MS4 as

22 required by the MS4 Permit and the Clean Water Act.

23 109. Baykeeper is informed and believes, and thereon alleges, that Mountain View has

24 therefore been in daily and continuous violation of Discharge Prohibition A.1. of the MS4 Permit every

25 day since at least December 4, 2014.

26 110. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s

27 violations of Discharge Prohibition A.1. of the MS4 Permit and the CWA are ongoing.

28 111. Mountain View’s violations will continue each day and/or occasion that it fails to

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1 effectively prohibit the discharge of raw sewage to or from the Mountain View MS4 in violation of the
2 requirements of the MS4 Permit and the Clean Water Act.

3 112. Each and every violation of Discharge Prohibition A.1. of the MS4 Permit is a separate
4 and distinct violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a).
5 113. By committing the acts and omissions alleged above, Mountain View is subject to an
6 assessment of civil penalties for each and every violation of the CWA occurring from December 4, 2014
7 to present pursuant to sections 309(d) and 505 of the CWA, 33 U.S.C. §§ 1319(d), 1365, and the
8 Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4.
9 114. An action for injunctive relief under the CWA is authorized by 33 U.S.C. § 1365(a).
10 Continuing commission of the acts and omissions alleged above would irreparably harm Baykeeper and
11 the citizens of the State of California, for which harm Baykeeper has no plain, speedy, or adequate
12 remedy at law.
13 WHEREFORE, Plaintiff prays for judgment against Mountain View as set forth hereafter.
14 SECOND CAUSE OF ACTION
Illegal Discharges of Polluted Stormwater
15 MS4 Permit, Receiving Water Limitations B.1. and B.2.
16 33 U.S.C. §§ 1311(a), 1342
115. Plaintiff incorporates the allegations contained in the above paragraphs as though fully
17
set forth herein.
18
116. Baykeeper is informed and believes, and thereon alleges, that Mountain View has
19
discharged and continues to discharge stormwater containing levels of pollutants that adversely impact
20
human health and/or the environment.
21
117. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s
22
discharges of stormwater containing levels of pollutants that adversely impact human health and/or the
23
environment violate Receiving Water Limitation B.1. of the MS4 Permit and the Clean Water Act.
24
118. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s
25
discharges from the Mountain View MS4 contain levels of pollutants that adversely impact human
26
health and/or the environment during and/or after every significant rain event and whenever non-
27
stormwater in the form of exfiltrating raw sewage or dry-weather non-stormwater discharges from the
28

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1 Mountain View MS4 since at least December 4, 2014.

2 119. Baykeeper is informed and believes, and thereon alleges, that Mountain View has

3 discharged and continues to discharge stormwater containing levels of pollutants that cause or contribute
4 to violations of applicable WQS.
5 120. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s
6 discharges of stormwater containing levels of pollutants that cause or contribute to exceedances of
7 applicable WQS violate Receiving Water Limitation B.2. of the MS4 Permit and the Clean Water Act.
8 121. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s
9 discharges from its MS4 contain levels of pollutants that cause or contribute to exceedances of
10 applicable WQS during and/or after every significant rain event and whenever non-stormwater in the
11 form of exfiltrating raw sewage or dry-weather non-stormwater discharges from the MS4 since at least
12 December 4, 2014.
13 122. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s
14 violations of Receiving Water Limitation B.1. of the MS4 Permit and the CWA are ongoing.
15 123. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s
16 violations of Receiving Water Limitation B.2. of the MS4 Permit and the CWA are ongoing.
17 124. Mountain View will continue to be in violation of the MS4 Permit and the CWA each
18 and every time its discharges contain pollutants at levels that violate Receiving Water Limitation B.1. of
19 the MS4 Permit.
20 125. Mountain View will continue to be in violation of the MS4 Permit and the CWA each
21 and every time its discharges contain pollutants at levels that violate Receiving Water Limitation B.2. of
22 the MS4 Permit.
23 126. Each and every violation of Receiving Water Limitation B.1. of the MS4 Permit is a
24 separate and distinct violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a).
25 127. Each and every violation of Receiving Water Limitation B.2. of the MS4 Permit is a
26 separate and distinct violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a).
27 128. By committing the acts and omissions alleged above, Mountain View is subject to an
28 assessment of civil penalties for each and every violation of the CWA occurring from December 4, 2014

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1 to present pursuant to sections 309(d) and 505 of the CWA, 33 U.S.C. §§ 1319(d), 1365, and the
2 Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4.

3 129. An action for injunctive relief under the CWA is authorized by 33 U.S.C. § 1365(a).
4 Continuing commission of the acts and omissions alleged above would irreparably harm Baykeeper and
5 the citizens of the State of California, for which harm Baykeeper has no plain, speedy, or adequate
6 remedy at law.
7 WHEREFORE, Plaintiff prays for judgment against Mountain View as set forth hereafter.
8 VIII. RELIEF REQUESTED
9 Wherefore, Plaintiff respectfully requests that this Court grant the following relief:
10 a. Declare Mountain View to have violated and to be in violation of the MS4 Permit and
11 Sections 301(a) and 402 of the CWA, 33 U.S.C. §§ 1311(a), 1342, for its unlawful discharges of
12 pollutants and violations of the MS4 Permit and the CWA;
13 b. Enjoin Mountain View from violating the MS4 Permit and Sections 301(a) and 402 of
14 the CWA, 33 U.S.C. §§ 1311(a), 1342;
15 c. Order Mountain View to pay civil monetary penalties for each violation of the CWA at
16 $37,500.00 per day for violations occurring between December 4, 2014 and November 1, 2015, and
17 $54,833.00 per day per violation for violations that occurred after November 2, 2015, as permitted by 33
18 U.S.C. § 1319(d) and Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4;
19 d. Award Plaintiff its reasonable costs of suit, including attorney, witness, expert, and
20 consultant fees, as permitted by Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d); and
21 e. Grant any other relief as this Court may deem appropriate.
22
23 Dated: February 4, 2020 Respectfully submitted,
24
25 /s/ Nicole C. Sasaki
NICOLE C. SASAKI
26 CHRISTOPHER LEN
SAN FRANCISCO BAYKEEPER, INC.
27 Attorneys for Plaintiff
San Francisco Baykeeper
28

Complaint 18