VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED

March 1, 2001


Nancy Fleming
Mayor
David Tyson
City Manager
City of Eureka
531 "K" Street
Eureka, CA 95501

Re: 60-Day Notice Letter of Intent to Sue for Violations of the Clean Water Act


Dear Mayor Fleming and Mr. Tyson,


This letter is written on behalf of the Environmental Protection Information Center ("EPIC") in response to the City of Eureka's ("City's") ongoing violations of the Clean Water Act and its implementing regulations. These violations arise from the ineffective manner in which the City has operated their wastewater treatment facility, resulting in hundreds of thousands of gallons of untreated sewage and unlawful quantities of toxic pollutants being discharged into the waters of Humboldt Bay and its tributaries. These problems are long-standing and present serious health risks to both human and non-human animals, yet the City has not taken remedial action to prevent further harm. We provide this notice pursuant to the citizens suit provisions of the CWA to notify you that unless these violations are corrected within the next 60 days, we will initiate legal action with the United States District Court to seek justice for the residents of Eureka and Humboldt Bay. 33 U.S.C.A. § 1365(a)(1), 40 C.F.R. § 135.


EPIC brings this action to abate the ongoing illegal discharges of pollutants from the City’s sewage system, to compel compliance by the City with Federal Law in their operation of this system, to order the City to restore the receiving waters impacted by the discharges, and to pay penalties for their violations of the Clean Water Act.

I. BACKGROUND


A. The City's Sewage System


Storm-drains, industrial facilities and sewage systems within the greater Eureka area are connected to the City's Elk River Wastewater Treatment Plant ("Wastewater Plant" or "sewage system"). The pipes and pump stations of this system cannot currently accommodate the amount of wastewater that comes from these areas, and frequent "bypasses" and "overflows" occur whereby untreated, raw sewage spews into streets, neighborhoods and/or directly into Humboldt Bay or its tributaries. Problems from the sewage system have plagued Eureka since it was constructed more than 15 years ago, yet there is little to no evidence that the City has taken any restorative steps during this time. In fact, the City has only added to this problem over the years, allowing many additional "hook-ups" into the system while not having the ability to handle the present amount of wastewater it receives. Adding insult to injury, the City reallocated more than one million dollars it had set aside to deal with some of these problems, and now intends to use this money to construct a "boardwalk" around portions of Humboldt Bay instead of alleviating the significant adverse impacts it is imposing upon this important habitat. The noxious odors and other problems caused by the sewage system have led to numerous complaints over the years, and stand in direct violation of the laws by which the City is required to abide. With the City's failure to redress these violations, further problems loom ahead for the human and non-human residents of Eureka and its environs.


The Wastewater Plant is located on Hilfiker Lane on the south side of Eureka. To reach the Plant, water from the system and the various pollutants it carries must flow through a series of pipes and 16 pump stations "along a long and inefficient path." City of Eureka 'Greater Eureka Wastewater Project' brochure. The facility is purportedly designed to treat up to 32 million gallons of wastewater per day ("mgd") during the rainy season, although only a maximum of 12 mgd receives a secondary treatment. The wastewater is then stored in an effluent holding pond and discharged to Humboldt Bay via a 4,100-foot long outfall line that ends on the east side of the shipping channel in the Bay. Discharges are supposed to occur only during ebb flows in the Bay, during which time it is the hope that such flow will assist in flushing the pollution out into the Pacific Ocean. . Leftover sludge is spread onto fields near the Bay.


Upon examining the records associated with the Plant, it becomes apparent that its current problems are long-standing and have only escalated in recent years. More often than not, monthly monitoring reports reveal that the City has violated effluent discharge limitations and allowed unlawful quantities of pollution to be discharged into Humboldt Bay. Indeed, just in the last three years, more than 400,000 gallons of untreated sewage have bypassed the system and flowed from "manholes" and/or pump stations into our streets, neighborhoods and/or directly into Humboldt Bay. Additionally, many tests have revealed that wastewater that does make its way to the Plant is not effectively treated, and the effluent and sludge that comes from the Plant contains many toxic chemicals in amounts that exceed the City's permit limitations.


Since at least 1984, extremely offensive odors have been associated with the Wastewater Plant. The vile odors that emanate from the Plant and the City's overflows and bypasses adversely affect many businesses and residents, and many have lodged complaints over the years for this reason. In fact, some businesses have reported that noxious odors produced by the system have been so overwhelming as to cause a loss of customers and the absences of employees. Due to the length of the collection system, it can take up to two days for wastewater to reach the Plant, causing the sewage to be in a septic condition by that time. "The levels of odor from the facility have affected a significant number of people who live, work, and shop in the vicinity of the plant. As a consequence of the strong odors and public concern for the problem, the Board adopted Cease and Desist Order No. 84-143…" [North Coast Regional Water Quality Control Board, Executive Officer's Summary Report, December 5, 1985]. More than 15 years later, these same odor problems still exist.


Monitoring reports have shown that wastewater that does make its way to the Wastewater Plant is often not effectively treated, with effluent being discharged from the Plant to Humboldt Bay that contains deleterious amounts of pollutants. Fecal coliform has been especially problematic, with many samples showing the Plant's effluent containing amounts of fecal coliform that greatly exceed the City's permit limitations. These violations, coupled with the numerous bypasses that discharged hundreds of thousands of gallons of sewage containing this and other pollutants in an untreated form, have severe impacts on the local area. As the City noted, "several times in the past few years, contamination from the sewage system has forced local officials to close the oyster beds" in Humboldt Bay. [City of Eureka 'Greater Eureka Wastewater Project' brochure][emphasis added]. These problems stand in clear violation of the Clean Water Act and demonstrate a reckless disregard for the health and safety of those who inhabit the greater Eureka area.

B. Humboldt Bay


Humboldt Bay is one of the largest and most biologically important coastal estuaries throughout California and the Pacific Northwest. Its wetlands, intertidal mudflats and marshes provide essential habitat for a great diversity of life, including approximately 141 invertebrate species, 110 fish species and 251 bird species. The designated beneficial uses for Humboldt Bay include: commercial and sport fishing; preservation of special biological significance; wildlife habitat; marine habitat; migration habitat for aquatic organisms; habitat for rare, threatened or endangered species; spawning reproduction and/or early development habitat for fish; shellfish harvesting; estuarine habitat; and aquaculture. Recognizing the importance of this area, the U.S. Fish and Wildlife Service established the Humboldt Bay National Wildlife Refuge in 1971, a refuge that now includes 2,200 acres of seasonal wetlands, salt marshes, grasslands, open bay, and mudflats.


The Bay hosts the largest beds of eelgrass south of Willapa Bay, Washington, and serves as an important spawning and nursery ground for albacore tuna, green and white sturgeon, Pacific herring, lingcod, Dungeness crab, rock crab, various species of rockfish, English sole, halibut, salmon, oysters, and many other aquatic species. Rich with these resources, Humboldt Bay provides a critical link for migrating and wintering birds in the chain of coastal wetlands from the Arctic Circle to South America, annually supporting millions of waterbirds, shorebirds, raptors, and songbirds. The Bay is one of the most important areas in the U.S. south of Alaska for the black brant, and as many as 32,000 of these migratory gees can be seen at one time during their stopovers between Alaska, Russia, Canada, and Mexico. The Bay is also essential habitat for a myriad of mammal species, with more than 30 different kinds of mammals that have been found in and around the Bay.


Until very recently, the Bay also supported large commercial and sport fishing, clamming, and other seafood industries. Indeed, seven of California’s twelve shellfish reserves set aside for public clamming and oystering are located within Humboldt Bay, and two-thirds of the state's oysters come from these waters.
The populations of many of the plant and animal species that rely on Humboldt Bay have declined so dramatically that protection under the California and/or federal Endangered Species Acts has become necessary to prevent their demise. These species include the Western lily, Menzie's Wallflower, Beach Layia, Marbled Murrelet, American Bald Eagle, California Brown Pelican, Western Snowy Plover, Aleutian Canada Goose, Peregrine Falcon, Gray Whale, Coho Salmon, Chinook Salmon, and Steelhead Trout.


With each unlawful discharge and illegal bypass that spews from the City's sewage system, effluents are released in amounts that are known to be deleterious to humans and the beneficial uses of Humboldt Bay. Such effluents include, but are not limited to: raw sewage not treated to primary and/or secondary treatment requirements, fecal coliform, pH, petrochemicals, chlorine, 1, 4-Dichlorobenzene, grease, total suspended and settleable solids, biochemical oxygen demand ("BOD"), chromium, cadmium, silver, nickel, zinc, cyanides, copper, lead, phenols, nutrients, biocides, and others. In the words of the City, these violations present "a serious threat to: public health, future economic development…the delicate ecology of Humboldt Bay, [and] endangered and threatened species living in and around the Bay, including the majestic Redwoods." [City of Eureka 'Greater Eureka Wastewater Project' brochure]. However, these are no longer merely threats, but realities that have occurred and continue to be endured by human and non-human animals that rely on clean air and clean water.

II. REQUIREMENTS OF THE CLEAN WATER ACT


In response to widespread degradation of the nation’s waters, Congress began enacting legislation in the 1940’s to help protect and restore the watersheds, wetlands and estuaries flowing through the United States. Congress expanded upon earlier legislation in 1971 to pass the Federal Water Pollution Prevention Act that is in place today (the "Clean Water Act," "CWA" or "the Act"), establishing as its objective "to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters." 33 U.S.C.A 1251(a). To achieve this objective, Congress declared that "it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985," and that all watersheds be healthy enough to, at the very minimum, "provide for the protection and propagation of fish, shellfish and wildlife…" Id. at (a)(1) and (2).


As part of its efforts to ensure these goals and objectives are accomplished, Congress made it illegal for persons and entities to discharge any pollutant into waters of the United States unless such discharge strictly complies with the Act. 33 U.S.C.A. §1311(a). For wastewater treatment plants such as the one in Eureka, dischargers must apply for a permit under the National Pollutant Discharge Elimination System ("NPDES") program and thereafter comply with the terms and provisions of such permit. 33 U.S.C.A. § 1342; 40 C.F.R. §§ 122, 125


Dischargers must also comply with any and all orders that are issued by the EPA and/or a state with respect to a standard or limitation for a pollutant. For the area that includes Humboldt Bay, the State of California has ordered that "controllable water quality factors shall conform to the water quality objectives…" of the applicable regional water quality standards. Among other things, the water quality objectives for Humboldt Bay require that "waters shall not contain taste- or odor-producing substances in concentrations…that cause nuisance or adversely affect beneficial uses." All persons, corporations and government entities are required to comply with these provisions as well as the "Water Quality Control Policy for the Enclosed Bays and Estuaries of California" ("Bays and Estuaries Policy") that was adopted by the California State Water Resources Control Board on May 16, 1974.


The California North Coast Regional Water Quality Control Board ("Regional Board") enacted an "Action Plan for (the) Humboldt Bay Area," which "was intended to guide publicly funded cleanup of the Bay. It envisioned full implementation of the State Water Board's 1974…[Bays and Estuaries Policy]…" (Regional Board, Water Quality Control Plan, North Coast Region, 4-3.00)("Basin Plan"). The action plan notes that some improvements have been made with respect to pollution problems in the Bay, but that "the Bay has been affected by point and nonpoint sources of water pollution and the potential for polluting episodes remains." Id. To reduce the potential for such episodes, the action plan recognizes that "…stormwater NPDES regulations and possible small-municipality regulations must be implemented to advance the management of runoff-borne pollutants" in Humboldt Bay. Id. at 4-400.


The CWA authorizes citizens to bring a civil action against any person "alleged to be in violation of…an effluent standard or limitation under [the Act]" or of a related order issued by the EPA or a state. 33 U.S.C. § 1365(a)(1). "Effluent standard or limitation" is defined to include, basically, (a) the prohibition in section 301(a) against unpermitted discharges, or (b) a condition of an NPDES permit "which is in effect under this chapter." 33 U.S.C. § 1365(f). Therefore, persons and entities that fail to comply with the above-described requirements can be made accountable for such violations by concerned citizens pursuant to the CWA's citizen suit provision. 33 U.S.C.A. § 1365(a)(1). Each violation of the Act subjects the violator to a penalty of up to $27,500 per day per violation for violations occurring within five (5) years prior to initiation of a citizen enforcement action. Id. at § 1319(c) and (d). Any discharger that commits such violations are liable for all relief deemed necessary by a court of law, including all related penalties set forth by section 309 of the Act. Id.

III. THE CITY OF EUREKA'S VIOLATIONS OF THE CLEAN WATER ACT


Since at least 1996, the City has been unlawfully operating their sewage system so as to continuously and/or intermittently discharge pollutants, including raw sewage not treated to primary or secondary effluent limitations, to navigable waters of the United States. Information currently available to EPIC indicates that the City has taken no affirmative steps to eliminate these violations, leaving the decrepit and inadequate sewage system essentially unchanged over the last five years. Information further indicates the City has permitted additional "hook-ups" into the system and also siphoned funds away from addressing these problems, making it virtually certain that these violations will persist into the future.


As discussed in this notice letter, these violations have resulted in undue harm to the human and non-human residents of the greater Eureka area, causing the closure of oyster harvesting, odors that are indecent and offensive to the senses, and otherwise degrading beneficial uses and/or causing pollution, contamination and nuisance. EPIC hereby puts you on notice that after the expiration of sixty (60) days, we intend to file suit in Federal Court against the City for each of your violations of the Clean Water Act and associated laws and regulations that occurred between March 1, 1996 and the present, as well as any future violations that occur. To provide detail as to the extent of the City's pattern of continuous violations of their NPDES permit, EPIC provides a summary of these violations attached hereto as Exhibit A.

A. The City Has Failed to Comply With Their NPDES Permit


Pursuant to the CWA and its implementing regulations, the City's NPDES permit states that "(t)he permittee must comply with all the conditions of this Permit. Any permit noncompliance constitutes a violation of the Clean Water Act and the Porter-Cologne Water Quality Control Act and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or denial of a permit renewal application. [40 C.F.R. 122.41(a)]." [California Regional Water Quality Control Board, North Coast Region Order Number 98-9 NPDES Permit No. CA0024449] ["Permit"].


1. The City Has Failed to Comply and Violated Their Discharge Prohibitions by Causing Bypasses and Overflows of Raw Sewage


The history of the City's Wastewater Plant is replete with violations of their NPDES permit, including hundreds of thousands of gallons of raw, untreated sewage that have been discharged into Humboldt Bay and/or our streets and neighborhoods in just the last few years. The number of illegal bypasses and overflows of untreated wastewater caused by the City is alarming; for example, since 1997, the City has reported that bypasses and overflows carried more than 400,000 gallons of untreated sewage into Martins Slough of Humboldt Bay, Dakota Street and many other places around Eureka, with innumerable problems at both the O Street and H Street lift stations. With each of these unlawful discharges, large quantities of harmful pollutants, including, but not limited to, fecal coliform, pH, petrochemicals, chlorine, 1, 4-Dichlorobenzene, grease, total suspended and settleable solids, biochemical oxygen demand ("BOD"), chromium, cadmium, silver, nickel, zinc, cyanides, copper, lead, phenols, nutrients, and biocides, are released into Humboldt Bay and/or the Eureka area. Dumping raw sewage not treated to primary and/or secondary standards from anywhere except the permitted outflow point is contrary to many provisions to which the City must adhere, including the following prohibitions contained in their NPDES permit:


Prohibition: The discharge of waste to Humboldt Bay is prohibited unless it is done in such a manner to assure that all wastewater is conveyed to the mouth of the Bay and dispersed in the Pacific Ocean during periods of ebb tide.


The City's Permit states that "the discharge of waste occurs only during the ebb tide in a manner which assures that the effluent is conveyed to the Pacific Ocean." The monitoring reports from the City show that this has not been the case, however, and that discharges of raw sewage and other problems have resulted in millions of gallons of wastewater being discharged to Humboldt Bay in a manner that is inconsistent with and in violation of this prohibition. EPIC hereby puts the City on notice of our intent to sue for all violations of this prohibition that occurred between March 1, 1996 and the present and are evidenced by the City's monitoring reports or information that becomes available through the course of litigation. Furthermore, EPIC hereby notifies the City of our intent to sue for any violations of this prohibition that are committed after the date of this 60 Day Notice Letter.

Prohibition: The discharge of untreated waste from anywhere within the collection, treatment or disposal facility is prohibited.


Similar to above, the City's Permit states that "…the manner in which the wastewater is discharged assures that the wastewater enters the Pacific Ocean and does not return to the bay." Again, the City has failed to discharge their wastewater in a manner that assures this is the case, and has, in fact, discharged many thousands of gallons of untreated wastewater directly into Humboldt Bay and in other ways that violate this prohibition. EPIC hereby puts the City on notice of our intent to sue for any and all violations of this prohibition that occurred between March 1, 1996 and the present and are evidenced by the City's monitoring reports or information that becomes available through the course of litigation. Furthermore, EPIC hereby notifies the City of our intent to sue for any violations of this prohibition that are committed after the date of this 60 Day Notice Letter.

2. The City Has Failed to Comply By Exceeding Their Effluent Limitations




(a) The City Has Discharged Unlawful Quantities of Fecal Coliform


The City's monitoring reports show that numerous samples of the Plant's effluent have contained fecal coliform in amounts that exceed the City's permit limitations. Some of these samples have been particularly high, including two that showed the effluent contained more than 11 times the allowable amount of fecal coliform. EPIC believes the City has discharged fecal coliform in amounts that exceed their permit limitations at least during the months listed in Exhibit A. EPIC hereby puts the City on notice of our intent to sue for any and all violations of this limitation that occurred between March 1, 1996 and the present and are evidenced by the City's monitoring reports or information that becomes available through the course of litigation. Furthermore, EPIC hereby notifies the City of our intent to sue for any violations of this prohibition that are committed after the date of this 60 Day Notice Letter.

(b) The City Has Discharged Other Harmful Pollutants in Deleterious and Unlawful Amounts


In addition to fecal coliform, the City's monitoring reports show other harmful pollutants have been discharged to Humboldt Bay in the City's effluent in amounts that exceed their permit limitations, including, but not limited to, the following:




(1) Chlorine
(2) Settleable Solids
(3) Biological Oxygen Demand ("BOD")
(4) Bioassay


EPIC believes the City has discharged all of these pollutants in amounts that exceed their permit limitations at least during the months listed in Exhibit A. EPIC hereby puts the City on notice of our intent to sue for any and all violations of this limitation that occurred between March 1, 1996 and the present and are evidenced by the City's monitoring reports or information that becomes available through the course of litigation. Furthermore, EPIC hereby notifies the City of our intent to sue for any violations of this prohibition that are committed after the date of this 60 Day Notice Letter.

3. The City Has Failed to Comply by Allowing Influents of Toxic Chemicals in Amounts that Exceed Their Authority


In addition to the egregious bypasses and overflows that the City has caused and continues to cause, the City has failed to effectively implement and enforce their Pretreatment Program. Monitoring reports reveal that many industrial dischargers routinely discharge chemicals into the sewage system in amounts that exceed their permit limitations. Pursuant to the City's NPDES permit, the City is required to "enforce the requirements promulgated under Sections 307(b), 307(c), 307(d) and 402(d) of the Act. [The City] shall cause industrial users subject to Federal Categorical Standards to achieve compliance no later than the date specified in those requirements or, in the case of a new industrial user, upon commencement of the discharge." (NPDES Permit page 12).


Entities such as Humboldt Bay Harbor and Recreation have habitually violated the provisions of the City's Pretreatment Program and exceeded their discharge limitations for toxic chemicals, yet the City has failed to take effective action to abate these violations. The concern for this is heightened by the fact that so many illegal bypasses have occurred and continue to occur, causing high levels of petroleum, silver, copper, zinc, and other toxic chemicals to be delivered directly into Humboldt Bay and the Eureka area. The City's NPDES Permit states that the City "shall be subject to enforcement actions, penalties, fines, and other remedies by the U.S. EPA or other appropriate parties…" if the City does not effectively carry out their Pretreatment Program. EPIC believes the City has violated this provision of their permit, and intends this 60-Day Notice Letter to include all such violations reported in the City's 1996-2000 Annual Monitoring Reports .

B. The City Has Violated Their Permit by Failing to Mitigate Their Impacts or Prevent Unlawful Discharges (Duty to Mitigate)


The City's illegal discharges and the harm they have caused could have been prevented if the City had taken remedial steps to eliminate the root causes of these discharges -- causes that have been made apparent to the City for more than a decade. The City has not acted, however, and has failed to "take all reasonable steps to minimize or prevent any discharge [that is] in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment," as required by their NPDES permit [40 CFR § 122.41(d)]. Due to the City's failure to follow this provision, more than 40 illegal overflows and bypasses have occurred and millions of gallons of wastewater have been discharged in a manner that is not in compliance with the Act. EPIC believes the City has been in continuous violation of this provision of their NPDES permit since at least March 1, 1996, and hereby puts the City on notice of our intent to sue for these ongoing violations of the Act. 33 U.S.C.A. § 1342; 40 C.F.R. §§ 122, 125. The City will continue to be in violation every day they operate the Facility without taking steps to minimize or prevent further unlawful discharges.

C. The City has Violated Their Permit By Failing to Properly Operate and Maintain Their Facilities (Proper Operations and Maintenance)


The CWA requires the City to "at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) that are installed or used…to achieve compliance with this Permit. Proper operation and maintenance includes adequate laboratory control and appropriate quality assurance procedures. This provision requires the operation of backup or auxiliary facilities or similar systems that are installed by a permittee only when necessary to achieve compliance with the conditions of this Permit." 40 C.F.R. 122.4(e).

The City has not complied with this regulation, as is evidenced by the number of the City's bypasses, overflows and other discharges that have been in violation of their NPDES permit, the CWA and other laws described in this notice letter. Id. and 33 U.S.C.A. § 1342. The City has failed to operate and/or maintain the sewage collection system from sewage overflows, line breaks, manhole failures, pump failures, power outages, blockages from debris, grease, roots, rocks, etc. As such, EPIC believes the City has been in continuous violation of this provision of their NPDES permit since at least Marc h 1, 1996, and hereby puts the City on notice of our intent to sue for these ongoing violations of the Act. 33 U.S.C.A. § 1342; 40 C.F.R. §§ 122, 125. The City will continue to be in violation every day they operate the Facility without taking steps to minimize or prevent further unlawful discharges.

D. The City Has Failed to Report Unlawful Discharges in Violations of their NPDES Permit


Pursuant to their NPDES Permit, the City is required to report to the Regional Water Quality Control Board each of their unlawful discharges, including all of those discussed in this notice letter. This report must be made orally "as soon as the (City) becomes aware of the circumstances," and in writing within five days of that time. Despite this clear requirement, there is no evidence in the Regional Water Board's files that the City made any attempt to report to the Regional Board as specified. The City violated their permit each time they failed to report these violations orally and in writing as specified, and EPIC hereby notifies the City of our intent to sue for each violation of the provision for noncompliance reporting that has occurred between March 1, 1996 and the present, as well as all future violations.

E. The City Has Failed to Comply and Violated the Orders of the State by Creating a Pollution, Contamination, and/or Nuisance


Prohibition: Creation of a pollution, contamination, or nuisance, as defined by Section 13050 of the California Water Code is prohibited. [Health and Safety Code, Section 5411].




The violations described herein have caused and continue to cause impacts that constitute pollution, contamination and nuisance as defined in the California Water Code. § 13050(m). The direct, indirect and cumulative impacts of these violations are injurious to human health, indecent and offensive to the senses, obstructing the free use of property so as to interfere with the comfortable enjoyment of life and property, and affecting entire communities and neighborhoods. Furthermore, these violations have altered and continue to alter the quality of the waters of Humboldt Bay and its tributaries to a degree that unreasonably affects the beneficial uses of these waters and the facilities that serve these beneficial uses. These discharges have also impaired and continue to impair the quality of these waters to such a degree that they pose serious hazards to the public health. As such, the City has committed and continues to commit serious violations of this prohibition of their NPDES permit, and with that has also committed violations of several other state and federal laws.


The Basin Plan requires that "waters shall not contain taste- or odor-producing substances in concentrations that impart undesirable tastes or odors to fish flesh or other edible products of aquatic origin, or that cause nuisance or adversely affect beneficial uses." The Basin Plan also requires that "all waters shall be maintained free of toxic substances in concentrations that are toxic to, or that produce detrimental physiological responses in human, plant, animal, or aquatic life. From all evidence available, it is apparent that the City's failure to comply with their NPDES program's provisions has allowed unchecked quantities of pollutants to be discharged into Humboldt Bay and into the streets and neighborhoods around Eureka, including those that are known to be harmful to humans and other mammals, benthic communities and birds. The illegal discharge of these pollutants runs contrary to the orders of the State of California, and is causing, or is threatening to cause, pollution, contamination and/or nuisance to Humboldt Bay.

F. The City's Unlawful Discharges Cause or Contribute to Violations of Applicable Water Quality Standards




Pursuant to the City's permit, the City is prohibited from discharging pollutants in a manner that causes or contributes to a violation of any applicable water quality standard contained in the Basin Plan. The violations described herein have caused or contributed to violations of many of these water quality standards, including those for the following parameters: color, floating material, suspended material, settleable material, oil and grease, biostimulatory substances, chemical constituents, toxicity, pesticides, sediment, turbidity, pH, and dissolved oxygen. The City has violated and continues to violate these provisions each time they caused or cause bypasses, overflows and/or discharges that contain unlawful quantities of pollutants. EPIC hereby puts the City on notice of our intent to sue for all violations of these water quality standards that have occurred between March 1, 1996 and the present, as well as any future violations that may occur.

G. The City's Unlawful Discharges Cause Impacts to Humboldt Bay that Violate the Permit's Receiving Water Limitations


The unlawful discharges of pollutants to Humboldt Bay described herein have caused and continue to cause the City's receiving water limitations to be exceeded, resulting in serious deleterious impacts to the beneficial uses of this area. [beginning on page 9 of the City's Permit]. For instance, the numerous bypasses and overflows caused and continue to "cause the receiving waters to contain oils, greases, waxes, or other materials in concentrations that result in a visible film or coating on the surface of the water or on objects in the water that cause nuisance or that otherwise adversely affect beneficial uses." Id. at ¶ 11. Likewise, these unlawful discharges have also caused and continue to "cause the receiving waters to contain floating materials, including solids, liquids, foams, and scum, in concentrations that cause nuisance or adversely affect beneficial uses." Id. at ¶ 5. Therefore, the violations described herein have also been in violation of the provisions for receiving waters that are contained within the City's NPDES permit. EPIC hereby puts the City on notice of our intent to sue on each and every violation of these limitations that were committed between March 1, 1996 and the present, as well as any future violations that may occur.

H. Causes of the City’s Illegal Discharges


The violations described in this notice letter are ongoing due to negligence and intentional conduct on behalf of the City. Specifically, these violations stem from the following:


One, the failure of the City, through their City Council, headed by Hon. Nancy Fleming, Mayor, to rebuild an antiquated inadequate sewage collection system.


Two, the failure of the City, through their Wastewater Facility, headed by David McGinty, Director, to operate and/or maintain the sewage collection system from sewage overflows; line breaks; manhole failures; pump failures; power outages; blockages from debris, grease, roots and rocks; infiltration; contractors; and so forth.


Three, the failure of the City, through their Wastewater Facility, to monitor raw sewage flows through the sewage system;


Four, the failure of the City, through their Wastewater Facility, to use diversion and interceptor systems at various locations for dry weather control, and to operate backup and auxiliary facilities that are necessary to achieve compliance with the conditions of their NPDES permit.


Five, the failure of the City, through their Wastewater Facility, to protect existing beneficial uses and qualities of receiving waters, and to improve beneficial uses and qualities of degraded receiving waters, by developing and implementing sufficient Best Management Practices ("BMPs") to control and reduce to the maximum extent practicable pollutants in stormwater and urban runoff that is discharged to and from the sewer system;


Six, the failure of City, through their Wastewater Department, to develop performance criteria for measuring BMP effectiveness;


Seven, the failure of the City, through their Wastewater Department, of ensuring that entities discharging stormwater and urban runoff into the City’s storm sewer system take steps to prevent, control and reduce discharges of pollutants into the City’s storm sewer system and then into the navigable waters of the United States;


Eight, the failure of the City, through their Wastewater Facility, to investigate the sources of raw sewage and other bacteria which consistently flow through the City’s storm sewer system into Humboldt Bay and the Eureka area; and


Nine, the failure of the City, through their Wastewater Facility, to take reasonable steps to minimize or prevent discharges that are likely to adversely affect human health and/or the environment.

IV. THE CITY OF EUREKA IS LIABLE FOR EACH VIOLATION OF THE CWA




Taken separately and together, the violations committed by the City demonstrate a lack of desire and/or ability on their behalf to adequately operate their sewage in a manner that does not violate state and federal laws. EPIC believes the City has violated the laws described in this notice by discharging pollutants directly and indirectly into navigable waters for at least the last five years and has otherwise not operated in accordance with their NPDES permit. EPIC further believes that these unlawful discharges cause or threaten to cause nuisance and otherwise degrade the beneficial uses of Humboldt Bay, and are in violation of the orders of the State of California described in sections II and III of this notice. Each day the City operated in a manner that did not comply with these regulations and each discharge they unlawfully released constitute a separate violation of the CWA. These violations of the Act are ongoing and will continue until the City takes remedial action to seek the abatement of the water quality and nuisance problems they impose.


The City is subject to all civil penalties prescribed by the CWA for their violations during the last five years as well as any future violations they may commit. EPIC believes that the City and/or other agencies have additional sampling data and other information that will evidence additional violations. Similarly, EPIC believes the City has sampled some of the overflows and bypasses, and that data will evidence high levels of toxic pollutants in those untreated discharges. In addition to all of the above violations, EPIC puts the City on notice of our intent to sue on any and all violations of Permit No. CA 0024449 that occurred between March 1, 1996 and the present and are evidenced by the City's monitoring reports. Furthermore, EPIC intends this notice to include all ongoing violations of the laws described above that are evidenced by information that becomes available to EPIC after the date of this Notice of Intent to File Suit.


As stated in the City's NPDES permit, "(t)he CWA provides that any person who violates a permit condition implementing Sections 301, 302, 306 307, 308, 318, or 405 of the CWA is subject to a civil penalty not to exceed $27,500 per day of violation. Any person who negligently violates permit conditions implementing Sections 301, 302, 306, 307, or 308 of the CWA is subject to a fine of not less than $2,500 or more than $27,500 per day of violation, or by imprisonment of not more than one year, or both. Higher penalties may be imposed for knowing violations and for repeat offenders."

V. CONCLUSION


EPIC was formed in 1977 and serves as a community-based, non-profit organization dedicated to protecting, preserving and restoring the native species and ecosystems of the North Coast of California. Many of EPIC's staff, board and members live and/or recreate in the areas affected by the unlawful discharges of pollutants by the City, and are injured by these violations and the consequent degradation to Humboldt Bay. Unless these violations are corrected, EPIC's members will continue to be harmed along with the many plant, aquatic, bird and mammal species that also depend on these areas.


EPIC's mailing address and phone number are as follows:


P.O. Box 397
Garberville, California, 95542
(707) 923-2931
Fax: 923-4210

We have retained legal counsel in this matter. All communication should be addressed to: Sharon Duggan,Esq 2070 Allston Way; Suite 300 Berkeley,CA 94704 (510) 647-1904 Fax: 647-1905
Bill Verrick, Esq. 424 First Street Eureka, CA 95501 (707)268-8900 ext 3 Fax: 268-8901






We hope this notice letter will compel you to act promptly to redress the problems and violations described herein, and to relieve Humboldt Bay of your unlawful pollutant discharges. If you do not so act within the next 60 days, the City of Eureka is hereby notified that we will pursue all injunctive, declaratory and other relief that is available under the law and seek the protection to which the life in Humboldt Bay and residents of Eureka are entitled. We are willing to discuss effective remedies for the violations noted in this letter. However, if you wish to pursue such discussions in the absence of litigation, we suggest that you initiate those discussions within the next 15 days so that they may be completed before the end of the 60-day notice period. We do not intend to delay the filing of a complaint in federal court if discussions are continuing when that period ends.

Sincerely,

Cynthia Elkins


cc: Christine Todd Whitman
Administrator
U.S. Environmental Protection Agency
401 M Street, N.W.
Washington, D.C. 20460


Laura Yoshii
Acting Regional Administrator
U.S. Environmental Protection Agency, Region 9
75 Hawthorne Street
San Francisco, California 94105-3901


Edward Anton
Acting Executive Director
State Water Resources Control Board
901 P Street
P.O. Box 100
Sacramento, California 95812-0100


Lee Michlin
Executive Officer
California Regional Water Quality Control Board
North Coast Region
550 Skylane Blvd., Suite A
Santa Rosa, CA 95403


John Ashcroft
Attorney General
Main Justice Building
10th Street and Constitution Avenue, N.W.
Washington, D.C. 20530