IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF WASHINGTON AT TACOMA

_____________________________________________________________________________
_

_____________________________________________________________________________
_

ARTHUR S. WEST )
plaintiff )
)
vs. ) No.
)
) PLAINTIFF’S ORIGINAL
STEPHEN L. JOHNSON, U.S. EPA ) COMPLAINT FOR VIOLATIONS
ADMINISTRATOR, U.S. SECRETARY ) OF THE CLEAN WATER ACT
OF COMMERCE, WASHINGTON ) AND THE COASTAL ZONE
STATE DEPARTMENT OF ECOLOGY, ) MANAGEMENT ACT
ENVIRONMENTAL HEARINGS OFFICE, )
STATE OF WASHINGTON, PORT OF )
OLYMPIA, CITY OF OLYMPIA, )
WEYERHAEUSER, LOTT, FEDERAL )
RAILROAD ADMINISTRATION, )
WASHINGTON STATE DEPARTMENT )
OF TRANSPORTATION, )
defendants )
____________________________________)_________________________________________

I INTRODUCTION
1.1 This is an action for violation of the CWA; authorization, construction and operation of
unpermitted facilities, continuing violations of "an effluent standard or limitation", (33 USC
1311,-12, 1316-17, 1344-45) including standards of performance defined in 33 USC 1316,
permit conditions or requirements and/or a permit, authorization, or "an order issued by the
Administrator or a State with respect to such standard or limitation" under §505(a)(1) of the
Clean Water Act, 33 U.S.C. §1365(a)(1), the Code of Federal Regulations, and the laws, policies

1 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
and regulations of the State of Washington, Washington DOE, and the other named public and
private entities.
1.2 These violations are exemplified by the Port’s, City's, LOTT’s and Weyerhaeuser’s failure to
obtain, operate under, and/or comply with the conditions and limitations of its National Pollutant
Discharge Elimination System (hereafter, "NPDES") Permits issued by the State of Washington
Department of Ecology pursuant to §402 of the Clean Water Act, 33 U.S.C. §1342, at the Port’s
City's, Weyerhaeuser’s and LOTT’s water treatment facilities and/or industrial and storm water
collection and discharge systems located in Thurston County, Washington, in and about the City
of Olympia.
1.3 In addition, Plaintiff seeks, pursuant to §505 (b) to have the Administrator act to perform the
mandatory duty under 33 USC 1251 (d) to administer the act to revoke, or otherwise act to
revoke the authority of the State of Washington (and any other State found to be similarly
situated) to regulate NPDES compliance, due to the manifest deficiencies in the State’s
regulation, issuance and monitoring of such permits on a statewide basis, apparent from the
Phase II and ISWGP permits and the manifest and unconscionable ongoing violations at the City
and Port of Olympia, Washington. State CZMA compliance is also sought, as is a NEPA EIS for
the Port’s Intermodal Infrastructure Enhancement Project. Pendant jurisdiction is also sought for
records claims.
1.4 Pursuant to §309(d) of the Clean Water Act, 33 U.S.C. §1319(d), each of the described
violations of the Clean Water Act subjects the violators, and each of them, to a penalty of up to
$27,500.00 per day, per violation, per outfall, and for each of the other reporting and construction
related actions, for violations occurring within five (5) years prior to the initiation of a citizen
enforcement action. West alleges a separate violation for each of the appended described point
sources, effluent limitations and monitoring requirements, and other violations, for each and
every day in the past 5 years that such violation has continued.

II. JURISDICTION, VENUE AND PARTIES.

2.1 Jurisdiction over this action is conferred by 28 U.S.C. §§ 1331 (federal question) and 33
U.S.C. § 1365(a) and (b) (Clean Water Act jurisdiction). An actual, justifiable controversy exists

2 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
between Plaintiff and Defendant. The requested relief is proper under 28 U.S.C. § 2201, 28
U.S.C. § 2202, and 33 U.S.C. § 1365(a).
2.2 Venue is properly vested in this Court pursuant to 33 U.S.C. § 1365(c)(1), because the events
giving rise to the claims occurred in this district.
2.3 At all times relevant Arthur West resided in Thurston County, State of Washington. He is a
citizen, landowner, and voter with full civil rights, and has standing to maintain this action in all
particulars. He has a recognized connection to South Sound and Budd inlet, and the plants and
animals therein, and uses the waters and shorelines of Puget Sound for recreation, leisure and
professional activity on an almost daily basis. He is particularly impacted by the degredation of
water and air quality reasonably foreseeable from defendant’s actions.
2.4 At all times relevant, Stephen L. Johnson was the administrator of the U.S. EPA with
nondiscretionary duties to implement the Clean Water Act.
2.5 At all times relevant, the Secretary of Commerce of the United States was the entity charged
with federal administration of CZMA grants.
2.6 At all times relevant, the Department of Ecology was an Agency of the State of Washington
with the responsibility to implement the NPDES permitting system.
2.7 At all times relevant, the Environmental Hearings Office was an agency of the State of
Washington required to implement the CZMA and its six enforceable policies.
2.8 At all times relevant the State of Washington was a State with mandatory duties to enforce
and implement the CZMA and the Clean Water act.
2.9 At all times relevant, the Port of Olympia was a quasi-municipal corporation failing to
properly test or monitor its discharges.
2.10 At all times relevant, the City of Olympia was a Municipal corporation with no enforceable
regulations or permit requirements to monitor or prevent discharge of toxic waste to the Sound
via storm water. (see testimony of Craig Tosomeen, SHB No. 08-013)
2.11 At all times relevant, after September 15, 2008, Weyerhaeuser was a corporation
discharging pollutants into Budd Inlet.
2.12 At all times relevant, LOTT was a corporation discharging pollutants into Budd Inlet.

3 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
2.13 At all times relevant, The Federal Railroad Administration was an agency expending federal
funds for Port of Olympia development and failing to conduct proper NEPA review of a project
with reasonably foreseeable significant impact.
2.14 At all times relevant, the Washington Department of Transportation was a State Agency
illegally withholding public records related to federal expenditures with the intent of evading
review of their actions.
III ALLEGATIONS
3.1 On or about September 24, 2008, Plaintiff duly notified defendants of his intent to sue via the
attached 60 day notice. Previously, in 2006, plaintiff had duly notified the Port of Olympia, and
all necessary parties, of similar violations by a previous 60 day notice.
3.2 Despite this notice, defendants have failed to negotiate with plaintiff, and have failed to
curtail the violations described in the two notices, incorporated herein by reference.
3.3 The EPA administrator has nondiscretionary duties to require States to implement the CWA
in accord with … These duties have not been complied with in Washington, or nationally.
3.4 The Secretary of Commerce has a duty to require that all states receiving CZMA funding
implement the CZMA. This duty has been neglected in Washington State and in the other states
with voluntary CZMA compliance agreements.
3.5 The State of Washington, the WSDOE, and the Environmental Hearings Office have failed to
properly implement the CZMA as required by the states voluntary agreement, and a cause of
action for declaratory relief exists to declare that such implementation is necessary
3.6 On each day since January 1 of 2004, the Port and City of Olympia, and Lott have been in
violation of federal and State law and it’s NPDES permits due to lack of testing and monitoring,
exceedances, and discharge of toxic substances.
3.7 The City of Olympia has further violated its NPDES permit by authorizing development
projects within the city and on Port property that do not comply with permit requirements.
3.8 The Port of Olympia has a custom and practice of concealing information about CWA
violations and toxic waste discharge. Plans for stormwater systems have been developed in secret
without compliance with the law.

4 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
3.9 The State of Washington, through its Phase II municipal stormwater permits and its Industrial
Stormwater general permit, has failed to adequately supervise or control discharges in accord
with Title 33 USC.
3.10 The Port of Olympia and City of Olympia, and LOTT are liable for each violation from
every outfall for the entire period covered by the notices, from January 1, 2004 to the present
day.
3.11 By their acts and omissions, the named entities, including the City and Port of Olympia
have permitted, facilitated, and allowed the construction of unpermitted storm water and
industrial collection systems and jointly contributed to all of the described violations herein. 3.12
3.12 Appendixes 1-5 of the September 2008 60 day notice show specifically the outfalls and
point sources that are known. Due to the existence of interlocking prior restraints upon disclosure
of information and access to the Courts in the State of Washington, other specific point sources
may exist that are not yet reasonably discoverable.
3.13 The Clean Water Act provides that, in any given state or region, authority to administer the
NPDES permitting system can be delegated by the federal Environmental Protection Agency
(hereafter, "EPA") to a state or regional regulatory agency, provided that the nondiscretionary
condition is met that applicable state or regional regulatory scheme under which the local agency
operates satisfies certain criteria and all applicable Federal CFRs. (see also 33 U.S.C. §1342(b).
3.14 In Washington, the EPA has granted authorization to a state regulatory apparatus to issue
NPDES permits. This authorization is manifestly unlawful and beyond the discretionary power
of the administrator in that 33 USC 1342, at C (2) provides that “Any State permit program
under this section shall at all times be in accordance with this section and guidelines promulgated
pursuant to section 1314 (i) (2) of this title.”
3.15 33 USC 1314, at I (2) provides
(i) Guidelines for monitoring, reporting, enforcement, funding, personnel,
and manpower
The Administrator shall
(1) within sixty days after October 18, 1972, promulgate guidelines for the
purpose of establishing uniform application forms and other minimum
requirements for the acquisition of information from owners and operators of
point-sources of discharge subject to any State program under section 1342 of
this title, and

5 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
 (2) within sixty days from October 18, 1972, promulgate guidelines
establishing the minimum procedural and other elements of any State program
under section 1342 of this title, which shall include:
(A) monitoring requirements;
(B) reporting requirements (including procedures to make information
available to the public);
(C) enforcement provisions; and
(D) funding, personnel qualifications, and manpower requirements (including a
requirement that no board or body which approves permit applications or
portions thereof shall include, as a member, any person who receives, or has
during the previous two years received, a significant portion of his income
directly or indirectly from permit holders or applicants for a permit).

3.16 The State of Washington has manifestly violated each and every one of these programmatic
requirements, and allowed violations so egregious as to compromise the entire regulatory
scheme. Washington has so abused its delegated NPDES authority, and placed it in private
association’s hands to the extent that it is a manifest and nondiscretionary duty of the
administrator to initiate proceedings and revoke state authority to regulate CWA compliance. The
State Environmental Hearings office is unlawfully dominated by private entities and refuses to
perform its duties to apply and enforce the Clean Water Act or the Coastal Zone Management
Act.
3.17 The FRA and the Port have failed to comply with NEPA in that they have failed to properly
assess reasonably foreseeable impacts related to an Intermodal Infrastructure Enhancement
project, and other port developments at the Port of Olympia. The Port and the WSDOT have
conspired to effect a prior restraint by illegally withholding public records related to this project
with the intent of obstructing justice in violation of state law. Washington State law provides no
adequate or timely remedy to compel disclosure of records necessary to protect federal rights.
3.17 The entity responsible for issuing NPDES permits and otherwise regulating discharges in
the region at issue in these cases is the Washington State Department of Ecology. The City of
Olympia, Port, Weyerhaeuser and LOTT own, maintain, and operate wastewater treatment,
refuse and disposal facilities, storm water systems and numerous treated and untreated point
sources. (Hereafter, “the Facilities”). The Facilities are major dischargers as defined by the EPA.
3.17 The Facilities discharge both into Budd inlet and Puget Sound. The Facilities have chronic

6 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
pollution problems associated with, among other things, their antiquated collection system,
undersized facility, and inconsistent reporting and maintenance schedule.
3.18 In addition, due to a pattern and policy of secrecy and violation of permitting and
environmental laws, the City, Port, LOTT and Weyerhaeuser, with the complicity of the State
DOE have colluded to construct a defective and unpermitted wastewater collection and discharge
system, and further colluded to evade reporting and effluent limitation standards and illegally
discharge toxic waste into the sound in amounts dangerous to human health and endangered
species, and their habitat, including the Puget Sound Resident Orcas.
3.19 The location of the violations is the State of Washington, as well as the property of Port of
Olympia, and particularly, but not exclusively, the former Cascade Pole site and present Log
Yard, the LOTT facility, and East Bay Redevelopment area, with the accompanying collection
systems and discharge points, as permitted, unpermitted, and proposed. The areas and outfalls are
shown in appendix 1-5 of the notice, to the extent they are known. The City, WSDOT and Port
continue to obstruct disclosure of records related to the above projects in violation of State law
with the intent of frustrating environmental review.
3.20 Pursuant to §301(a) of the Clean Water Act, 33 U.S.C. §1311(a), the State of Washington
DOE has formally concluded that egregious violations by the Port of its NPDES Permit have
occurred, as well as violations of standards of performance as defined in prohibited by law.
Beneficial uses of most portions of lower Puget Sound are being affected in a prohibited manner
by these violations. Pursuant to § 304 of the Clean Water Act, 33 U.S.C. §1311, the EPA and/or
the State have identified the City's, Port’s LOTT’s and Weyerhaeuser’s Facilities as a point
sources, the discharges of which contribute to violations of applicable water quality standards.
Other unidentified point sources have been illegally constructed or are planned and/or under
construction in regard to the Weyerhaeuser Log Yard and the East Bay Redevelopment Project.
3.21 Outfall locations: The outfall locations are as specified in Appendix 1-5 of the September
2008 notice and as described in West’s previous CWA 60 day letter. These enumerated violations
are based upon review of monitoring data submitted by the Port to the DOE. In addition to all of
the above violations, this notice covers any and all violations of Permits held by the City, Port,
and LOTT, evidenced by the Port and City's monitoring reports which they have submitted to the
DOE and/or the EPA during the period January 2004 through the present.
7 PLAINTIFF’S ARTHUR S. WEST
ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
3.22 Over the past five years, the City, Port, LOTT, and Weyerhaeuser have violated
requirements of their NPDES permits in regard to discharge limitations, effluent limitations,
receiving water limitations, section 303 (d) limitations, monitoring and reporting requirements as
reported by the City, port, Lott and/or Weyerhaeuser in its monitoring reports and other
documentation filed with the DOE, and unpermitted discharges due to failures in the collection
system.
3.23 In addition, due to a collusion and conspiracy of Port, City, and Weyerhaeuser officials,
deliberate violations of existing permits and construction of unpermitted collection systems of
unknown scope and danger have been illegally allowed, and illegally approved by City of
Olympia officials and City Hearing Examiner Thomas Bjorgen. Furthermore, these violations are
continuing. The violations, established in the City's, Port’s DOE’s and Weyerhaeuser’s
monitoring data, raw data, records of the City and of the DOE, include but are not limited to the
following:

IV CAUSES OF ACTION
5.1 §505 (b) MANDATORY DUTY OF EPA ADMINISTRATOR
The EPA administrator has failed to perform mandatory duties in regard to administration
of the CWA, and/or CZMA, creating a cause of Action under §505 (b) for which plaintiff is
entitled to the relief requested below.
5.2-CLEAN WATER ACT §505(a) claims 5.2 A-H
A. Discharge Prohibitions
From January of 2004 to the present, the Port, City, and LOTT have committed violations of
discharge prohibitions as described below from each and every outfall identified in the 60 day
notices.
1. Discharge of raw sewage due to collection system wastewater overflows.
2. Treatment plant bypasses.
3. Prohibition of discharge of non-disinfected or untreated turbid storm and wastewater.
4. Discharge flow limit due to failure to monitor and report flow.
5. Discharge from unpermitted, unlawful, unmonitored and undisclosed collection systems.
These actions created a cause of action for violation of discharge prohibitions creating a
cause of Action under §505 (b) for which plaintiff is entitled to the relief requested below.

8 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
B. Effluent Limitations
From January of 2004 to the present, the Port and City have committed violations of effluent
limitations as described below from each and every outfall identified in the 60 day notices.
1. Lead, Zink, and Mercury limits
2. Daily maximum limit on total Coli form organisms.
3. Biological Oxygen Demand (“BOD”).
4. PH
5. Turbidity
6. Settleable solids.
7. Chlorine residual limits
8. Toxic pollutant limits (see below)
9. Dioxin and related compounds
10. TMDL limits for discharge into 303(d) listed waters
11. Deliberate and negligent failure to report, test, or measure discharge to ensure
compliance.
These actions created a cause of action for violation of effluent limitations under §505 (b) for
which plaintiff is entitled to the relief requested below.
C. Receiving Water Limitations
From January of 2004 to the present, the Port, City, and LOTT have committed reporting and
monitoring violations as described below from each and every outfall identified in the 60 day
notices.
1. PH limits.
2. Turbidity levels for failure to monitor or report.
3. All other items mentioned in B, above
4. Prohibition on floating material, odor, taste, discoloration, bottom deposits,
biostimulants, bioaccumulation of pesticides, fungicides, wood treatment
chemical, or other toxic pollutants for failure to monitor or report.
These actions created a cause of action for violation of receiving limitations for which
plaintiff is entitled to the relief requested below.

D. Reporting and Monitoring Violations

From January of 2004 to the present, the Port, City, and LOTT have committed reporting and
monitoring violations as described below from each and every outfall identified in the 60 day
notices, incorporated herein by reference. (See exhibits 1-5, including outfalls No. 1-12)
1. Failure to monitor or report due to collusion or conspiracy to suppress and conceal
violations

9 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
 2. Failure to measure due to deliberate policy, collection system defect, or equipment
malfunctions.
3. Failure to construct system with proper procedure in a manner to allow reasonable
monitoring
4. Failure to properly monitor and report levels of turbidity, PH, mercury, chromium (VI),
lead,
arsenic, cadmium, mercury, molybdenum, nickel, selenium, zinc, and toxic pollutants and
failure to provide a basis for not monitoring pursuant to 40 CFR 131.36.
5. Filing monthly and/or quarterly self-monitoring reports late or not at all.
These actions created a cause of action for reporting and monitoring violations, creating a
cause of action for which plaintiff is entitled to the relief requested below.

E. Response violations.
From January of 2004 to the present, the Port, City, and LOTT have committed response
violations as described below from each and every outfall identified in the 60 day notices.
1. Failure to conduct level 1 or other response to events as required in permit.
2. Failure to respond to known violations
These actions created a cause of action for violation of response requirements for which
plaintiff is entitled to the relief requested below.

F. 40 CFR 130 violations

From January of 2004 to the present, the Port and City have committed response violations as
described below from each and every outfall identified in the 60 day notices.
1. Discharge into section 303(d) listed waters of Budd inlet of TMDL amounts in excess of
or in violation of 40 CFR 130.1-15,
2. Failure to adopt policies or plans to comply with 40 CFR 130 and the Clean Water Act.
These actions created a cause of action for violation of 40 CFR and TMDL limitations for
which plaintiff is entitled to the relief requested below.

G. Discharge of toxic pollutants

From January of 2004 to the present, the Port, City, and LOTT have committed violations
as described below from each and every outfall identified in the 60 day notices. The defendants
have discharged each of the toxic pollutants designated pursuant to section 307(a)(1) of the Act
(see list in 60 day notice) which the named entities are responsible for unlawfully discharging on
each specific day and from each specific outfall over the last 5 years.
These actions created a cause of action for discharge of toxic pollutants in violation of the CWA
for which plaintiff is entitled to the relief requested below.

H. Authorization of construction in violation of CWA and Phase II permit

10 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
 From January of 2004 to the present, the WSDOE, and the Port and City of Olympia have
unlawfully approved and authorized construction projects in violation of their NPDES permits.
These projects include the Weyerhaeuser related cargo yard projects and the East Bay
redevelopment. These actions created a cause of action for permit violations and/or violation of
the CWA for which plaintiff is entitled to the relief requested below.

5.3 DECLARATORY JUDGEMENT

Defendants, by their actions, created a cause of action for declaratory relief, for which
plaintiff is entitled to the relief requested below.
5.4 NEPA CLAIM
By expending federal funds for the Port of Olympia Intermodal Infrastructure Enhancement
project and related development without an EIS or other adequate assessment of regional and
cumulative impacts, including those related to water quality, the CZMA, and CWA compliance,
the Port, WSDOT, and the FRA violated NEPA, for which plaintiff is entitled to the relief
requested below.
5.5 PENDANT JURISDICTION CLAIMS
Plaintiff seeks to assert pendant jurisdiction (See United Mine Workers v. Gibson) on State
law RCW 42.56 claims against the City of Olympia, the Port of Olympia and the WSDOT for
withholding of public records related to this case, and seeks a declaratory ruling as to whether
the State Public Records Act constitutes a prior restraint lacking adequate procedural safeguards
to ensure prompt and final judicial review in accord with the 1st Amendment.

REQUEST FOR RELIEF

Wherefore, plaintiff respectfully prays for the following relief:

1. That a penalty of not less than $25,000 a day be assessed from the Port, City, and LOTT
for each day and each outfall and for each violation of the Clean Water Act that is found
to have taken place, pursuant to 33 U.S.C. §1319(d).
2. That an immediate injunction issue under the seal of this court prohibiting further
violations of the Clean Water Act pending trial, and suspending construction of the East
Bay Redevelopment, the Cargo Yard until CWA compliance can be assured and further,

11 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501
 that the Intermodal Infrastructure Enhancement Project be enjoined until all public
records have been disclosed and a proper EIS conducted under NEPA for it and all related
and interconnected projects.

3. That the Administrator be compelled to revoke the State of Washington’s Authority to

implement the Clean Water Act, and that of any State similarly situated.

4. That a declaratory ruling issue that the State of Washington, the WSDOE and the
Environmental Hearings Office be required to either implement and enforce the CZMA
or return the CZMA grant funds to the federal government.

5. That this Court assume continuing jurisdiction to ensure that a reasonable plan for
compliance with the CWA and CZMA in the state of Washington be adopted.

6. That this Court assume pendant jurisdiction over State public records claims related to
the issues of this case, declare that Washington State Law and current procedures (as
applied) do not incorporate adequate procedural safeguards to ensure prompt and final
review, and compel full disclosure of all records now being withheld, assessing penalties
pursuant to RCW 42.56 against the Port, City, and WSDOT.

7. That plaintiff recover costs and fees.

Done this day of December 10, 2008.

______________________

ARTHUR WEST

12 PLAINTIFF’S ARTHUR S. WEST

ORIGINAL 120 State Ave N.E. #1497
COMPLAINT Olympia, WA. 98501