Californians for Alternatives to Toxics (CAT) brought a citizen suit against Kernen Construction, Bedrock Investments, Scott Farley, and Kurt Kernen (Defendants) for violations of the Clean Water Act (CWA), which allows private citizens to sue CWA violators for penalties (payable into the US Treasury), injunctive relief, and attorneys’ fees.

Thousands of Violations Acknowledged
Defendants admitted to 9,461 CWA violations, although only 11 were for actual illegal discharges.  The others were for failure to maintain an adequate storm water pollution prevention plan (SWPPP), failure to maintain required pollution control technology, failure to maintain an adequate monitoring implementation plan (MIP), and reporting failures.  Defendants characterized the violations as minor and suggested a penalty of $15,000.  CAT suggested a penalty of almost $23 million, with 90% deferred until later in the year and forgiven if Defendants can demonstrate CWA compliance.

Penalty of Over $2 Million
The Court accepted neither approach.  Rather, it assessed $10,000 for each discharge violation, $500 for each SWPPP violation, $500 for each technology violation, $500 for each MIP violation, and $50 for each reporting violation, for a total penalty of $2,087,750.  The Court noted that the individuals as well as the companies are responsible for the penalty.

Injunctive Relief Not Resolved
The Court did not rule on the request for injunctive relief; rather, the Court ordered the parties to confer and either reach an agreed injunction or report to the Court on the discovery needed for the Court to rule on CAT’s request for injunctive relief.

The case is Californians for Alternatives to Toxics v. Kernen Construction in the US District Court for the Northern District of California.