NVR Mind the Dirty Water: United States Department of Justice v. NVR, Inc., dba Ryan Homes

06-15-2017 – NVR Inc., dba Ryan Homes, just got hit with an EPA lawsuit alleging that it:

has engaged in residential construction that discharges pollutants in storm water without a permit in violation of CWA Section 301, 33 U.S.C. § 1311; and has failed to comply with the conditions of permits (including state general permits) issued in accordance with CWA Section 402, 33 U.S.C. § 1342, for the discharge of pollutants in storm water from construction sites . . .

No fun tangling with the DOJ when their legal fees paid by taxpayers and your legal fees are paid by . . . you.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA, Plaintiff, v. NVR, Inc., Defendant. Civil Action No. COMPLAINT Plaintiff, the United States of America, through its undersigned attorneys, by the authority of the Attorney General, and at the request of the Administrator of the United States Environmental Protection Agency (“EPA”j, files this Complaint and alleges as follows: NATURE OF ACTION 1. This is a civil action for injunctive relief and civil penalties brought under Section 309(b) and (d) of the Clean Water Act (“CWA”), 33 U.S.C. § 1319(b) and (d), against NVR, Inc., (“NVR” or “Defendant”), doing business, inter alia, as Ryan Homes. NVR has engaged in residential construction that discharges pollutants in storm water without a permit in violation of CWA Section 301, 33 U.S.C. § 1311; and has failed to comply with the conditions of permits (including state general permits) issued in accordance with CWA Section 402, 33 U.S.C. § 1342, for the discharge of pollutants in storm water from construction sites, in violation of CWA Section 301, 33 U.S.C. § 1311. Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 1 of 21 PageID: 1 JURISDICTION, VENUE AND NOTICE 2. This Court has jurisdiction over the subject matter of this action under Sections 309(b) and (d) of the CWA, 33 U.S.C. §§ 1319(b) and (d), and 28 U.S.C. §§ 1331, 1345 and 1355. 3. Venue is proper in this district under Section 309(b) of the CWA, 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1391and 1395, because NVR conducts business in this District and because certain of the violations occurred in this District. 4. The United States has provided notice of the commencement of this action to New Jersey and New York State in accordance with Section 309(b) of the Act, 33 U.S.C. § 1319(b). 5. Authority to bring this action is vested in the United States Department of Justice under 28 U.S.C. §§ 516 and 519. DEFENDANT 6. NVR is a corporation incorporated and with its principal office in the Commonwealth of Virginia. NVR is a “person” as defined in CWA Section 502, 33 U.S.C. § 1362(5), 40 C.F.R. § 122.2. 7. NVR does business in at least fourteen States of the United States including in this District. 8. NVR has constructed and is currently constructing residential homes on various pieces of property owned and/or operated by NVR throughout the United States, including this District. NVR constructs hundreds of new homes each year. 2 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 2 of 21 PageID: 2 STATUTORY AND REGULATORY AUTHORITY 9. The Clean Water Act is designed to restore and maintain the chemical, physical and biological integrity of the nation’s waters. 33 U.S.C. § 1251(a). 10. To accomplish the objectives of the Act, CWA Section 301(a), 33 U.S.C. § 1311(a), prohibits the “discharge of any pollutant” by any person except in certain circumstances, including in compliance with a National Pollutant Discharge Elimination System (“NPDES”) permit issued by EPA pursuant to CWA Section 402, 33 U.S.C. § 1342. 1 1. CWA Section 502(12), 33 U.S.C. § 1362(12), defines the term “discharge of a pollutant” as, inter alia, “any addition of any pollutant to navigable waters from any point source.” 12. Section 502(7) of the CWA, 33 U.S.C. § 1362(7), defines “navigable waters” as “the waters of the United States, including the territorial seas.” “Waters of the United States” has been further defined to include, among other things, waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce; interstate waters; and tributaries of such waters. 40 C.F.R. § 122.2. 13. CWA Section 502(14), 33 U.S.C. § 1362(14), defines a “point source” as “any discernable, confined and discrete conveyance… from which pollutants are or may be discharged.” 14. CWA Section 402(p), 33 U.S.C. § 1342(p), requires a permit for storm water discharges associated with industrial activity. 15. EPA regulations define the term “storm water discharge associated with industrial activity” to include storm water discharges from construction activities, including clearing, grading, and excavation activities, that result in a disturbance of five or more acres of total land 3 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 3 of 21 PageID: 3 area. 40 C.F.R. § 122.26(b)(14)(x). Construction activity also includes the disturbance of less than five acres of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than five acres. Id. 16. EPA regulations also define the term “storm water discharge associated with small construction activity” to include storm water discharges from construction activities, including clearing, grading, and excavation activities, that result in a disturbance of equal to or greater than one acre and less than five acres. 40 C.F.R. § 122.26(b)(15)(i). Construction activity also includes the disturbance of less than one acre of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than one acre. Id. 17. In 1992, EPA issued a Final NPDES General Permit for Storm Water Discharges from Construction Sites (“CGP”). 57 Fed. Reg. 41176 (Sept. 9, 1992). EPA has, on various occasions, subsequently modified and reissued this general permit. See 63 Fed. Reg. 7858 (Feb. 17, 1998); 63 Fed. Reg. 36490 (July 6, 1998); 65 Fed. Reg. 25122 (Apr. 28, 2000); 68 Fed. Reg. 39087 (July 1, 2003); 73 Fed. Reg. 40338 (July 14, 2008); 77 Fed. Reg. 12286 (Feb. 29, 2012). The violations alleged in this complaint occurred over a time period spanning the effective dates of both the 2008 CGP (effective June 30, 2008 to February 15, 2012) and 2012 CGP (effective February 16, 2012 to February 16, 2017). 18. CWA Section 402(b), 33 U.S.C. § 1342(b), provides that states may issue their own storm water permits for discharges into navigable waters within their jurisdiction if they are authorized by EPA to do so. Most states are so authorized and have issued their own NPDES general permits governing discharges of storm water associated with construction activities. For states that have not been authorized, EPA remains the permitting authority for purposes of the D Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 4 of 21 PageID: 4 CWA, and the federal general permit applies. The United States may enforce the state-issued NPDES permit under the CWA, 33 U.S.C. § 1342(1). The federal or state NPDES general permit for storm water discharges associated with construction activities that applies in a state is hereinafter referred to as the “Applicable Permit.” 19. Section 308 of the Clean Water Act, 33 U.S.C. § 1318, requires owners and operators of point sources to submit information to the EPA Administrator as needed to carry out the objectives of the Clean Water Act, including the NPDES permit program of CWA Section 402, 33 U.S.C. § 1342. 20. Under EPA’s regulations, persons who discharge or who propose to discharge “storm water associated with industrial activity” are required to apply for an individual permit or seek overage under a promulgated storm water general permit. 40 C.F.R. §§ 122.21(aj & (c), 122.26(c), 122.28. In applying for coverage under a storm water individual or general permit, a potential permittee must provide the necessary information on the basis of which EPA (or the state permitting agency) may evaluate the appropriateness of the issuance of any such permit. 21. Under 40 C.F.R. § 122.21(c), a discharger proposing a new discharge of storm water associated with construction activity covered by 40 C.F.R. § 122.26(b)(14)(x) or 122.26(b)(15)(i) must submit an application 90 days before the date construction is to commence, or by the deadlines provided by the terms of any applicable general permit. See 40 C.F.R. § 122.28(b)(2). 22. In general, both the federal and state general permits impose similar requirements on the owners and operators of construction sites. Generally, a person must obtain coverage under a general permit prior to discharging storm water if that person engages in construction that meets the definition of “industrial activity” or “small construction activity” under 40 C.F.R. Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 5 of 21 PageID: 5 § 122.26(b)(14)(x) or 122.26(b)(15)(i) and either has operational control of construction project plans and specifications, or has day-to-day operational control of those activities which are necessary to ensure compliance with permit conditions. 2008 Federal CGP, Part 5.12; 2012 Federal CGP, Part 1.1; 33 U.S.C. §§ 1311(a) & 1342(p); 40 C.F.R. § 122.21; 40 C.F.R. Part 122. 23. Though they differ in some of the details, in general, under the Applicable Permits, any person subject to the permit is required to develop a storm water pollution prevention plan (“SWPPP”), which sets forth a plan to control and reduce pollutants in storm water discharges from construction activities. 2008 Federal CGP, Parts 3 and 5; 2012 Federal CGP, Parts 2 and 7. The SWPPP must meet specific requirements and include certain information. Id. 24. A central requirement of the SWPPP is the selection of best management practices (“BMPs”). 2008 Federal CGP, Part 3; 2012 Federal CGP, Part 2. BMPs are management practices implemented “to prevent or reduce the discharge of pollutants to waters of the United States.” 2008 Federal CGP, Appendix A. These practices include measures to prevent erosion (such as the scheduling of the project to minimize the amount of land that is being graded at any particular time) and measures to capture sediment before it leaves the site (such as silt fences and sedimentation basins). 25. The permits also require the permittee to implement the SWPPP and to properly operate and maintain the BMPs. 2008 Federal CGP, Parts 3.1 and 3.6.A; 2012 Federal CGP, Parts 2.1 and 7. 26. The permits impose additional requirements, including, inter alias inspection of the site during construction, 2008 Federal CGP, Part 4.A, 2012 Federal CGP, Part 4.1.2; maintenance of the SWPPP and sometimes other records at the site, 2008 Federal CGP, Part Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 6 of 21 PageID: 6 5.11.A, 2012 Federal CGP, Part 7.3; and final stabilization of the site followed by termination of permit coverage, 2008 Federal CGP, Part 6.2, 2012 Federal CGP, Part 8.2.1. 27. CWA Section 309(b), 33 U.S.C. § 1319(b), authorizes the Administrator of EPA “to commence a civil action for appropriate relief, including a permanent or temporary injunction,” when any person is in violation of 33 U.S.C. §§ 1311, 1318, or of any condition or limitation in a permit issued in accordance with CWA Section 402, 33 U.S.C. § 1342, including state permits. 28. CWA Section 309(d), 33 U.S.C. § 1319(d), provides, in part, that any person who violates 33 U.S.C. §§ 1311, 1318, or any condition or limitation in a permit issued pursuant to CWA Section 402, 33 U.S.C. § 1342, shall be subject to a civil penalty not to exceed $27,500 per day for each such violation occurring after January 31, 1997 through and including March 15, 2004, and $32,500 per day for each such violation from March 16, 2004 through and including January 12, 2009, and $37,500 per day for each such violation occurring after January 12, 2009 through and including November 2, 2015, and $52,414 per day for each such violation occurring after November 2, 2015. 33 U.S.C. § 1319(d); 69 Fed. Reg. 7121 (Feb. 13, 2004); 74 Fed. Reg. 626 (Jan. 7, 2009); 78 Fed. Reg. 66643 (Nov. 6, 2013); 82 Fed. Reg. 3633 (Jan. 12, 2017) (codified at 40 C.F.R. pt. 19). GENERAL ALLEGATIONS 29. Based on inspections conducted at NVR construction sites in New Jersey and New York, and information obtained from NVR’s responses to information requests issued by EPA pursuant to CWA Section 308, 33 U.S.C. § 1318, EPA discovered that at the sixty-five sites listed below, NVR discharged storm water without first obtaining coverage under Applicable Permits, and for three of the sites NVR failed to comply with the requirements of Applicable 7 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 7 of 21 PageID: 7 Permits for the discharge of storm water from construction sites after NVR obtained permit coverage. In the alternative, if NVR alleges and the Court determines that NVR was covered under Applicable Permits throughout its construction activities at all of the sites, NVR failed to comply with the requirements of the Applicable Permits at all of the sites listed below. 30. At each of the sites listed below, NVR engaged in construction activities that resulted in the disturbance of at least one acre. 31. NVR’s sites, as well as the storm sewers, ditches, or other conveyances at NVR’s sites, constitute “point source[s]” within the meaning of CWA Section 502(14), 33 U.S.C. § 1362(14). 32. NVR controlled the plans and specifications for construction activities, or otherwise met the definition of owner or operator under 40 C.F.R. 122.2 and the Applicable Permits. 33. On information and belief, NVR’s construction activities resulted in the addition of “pollutants,” including rock, sand, cellar dirt, industrial waste, solid waste, and other pollutants, from storm sewers, ditches, or other conveyances to streams, creeks, and other water bodies that are “waters of the United States,” within the meaning of CWA Section 502(6) and (7), 33 U.S.C. § 1362(6) and (7). 34. By causing the addition of such pollutants to waters of the United States from point source(s), NVR has engaged in the “discharge of pollutants” within the meanings of Sections 301 and 502(12) of the Act, 33 U.S.C. §§ 1311 and 1362(12), without permit authorization. 35. NVR was a person that proposed to discharge or who otherwise was required to timely apply for coverage under an Applicable Permit, in accordance with CWA Sections 308 8 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 8 of 21 PageID: 8 and 402(p), 33 U.S.C. §§ 1318 and 1342(p), 40 C.F.R. §§ 122.21(a), (c), 122.26(c), and 122.28, and analogous state laws. 36. From at least 2007, NVR was aware that it was required to submit a Notice of Intent to obtain coverage under the Applicable Permit prior to beginning work on a site. 37. At each of the sites listed below, NVR failed to timely submit the information required to apply for or obtain coverage under the Applicable Permit. 38. After being informed by EPA in 2009-2010 of its failure to submit Requests for Authorizations (“RFA”, NJ) and Notices of Intent (“NOI”, NY), NVR subsequently submitted RFAs and NOIs for those sites. 39. On information and belief, at each of the sites listed below, NVR discharged polluted water to waters of the United States without complying with all of the requirements of the Applicable Permit. SPECIFIC ALLEGATIONS NEW JERSEY GENERAL PERMIT 40. The New Jersey Department of Environmental Protection (“NJDEP”) is the agency with the authority to administer the federal NPDES program in New Jersey pursuant to Section 402 of the CWA, 33 U.S.C. § 1342. Under the authority granted to the NJDEP by the EPA under Section 402(b) of the CWA, 33 U.S.C. § 1342(b), a New Jersey Pollutant Discharge Elimination System (“NJPDES”) permit is required to be obtained from the NJDEP for the discharge of pollutants from a point source to a water of the United States. 41. The terms “construction general permit” or “CGP” mean the New Jersey Pollutant Discharge Elimination System (“NJPDES”) SG3 -Construction Activity Storm Water General D Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 9 of 21 PageID: 9 Permit No. NJG0088323. The NJ CGP was issued on March 1, 2007, modified on August 17, 2009, modified on March 1, 2012, modified and renewed on March 1, 2017. 42. The NJ CGP incorporates by reference various conditions and definitions contained in Title 7 of the New Jersey Administrative Code (“N.J.A.C.”). NJ CGP, Part I.F.2. and H.1. 43. Owners and operators regulated under 40 C.F.R. § 122.26(b)(14)(x) or 40 C.F.R § 122.26(b)(15)(i) must seek CGP coverage in New Jersey by filing a Request for Authorization (“RFA”) in accordance with the terms and conditions of the CGP. 44. Operating “entity” or “operator” means “any person who alone or along with other persons has primary management and operational decision-making authority over any part of a facility” N.J.A.C. 7:14A-1.2. 45. NJ CGP may authorize “all new and existing stormwater discharges associated with industrial activity and small construction activities as defined in N.J.A.C. 7:14A-1.2, and that are from the following facilities: … Construction activities including clearing, grading and excavation activities. … ” NJ CGP, Part I.A.2.a.i. 46. N.J.A.C. 7:14A-1.2 defines stormwater discharge associated with small construction activity as including stormwater from “Construction activities including clearing, grading, and excavating that result in land disturbance of equal to or greater than one acre and less than five acres. Small construction activity also includes the disturbance of less than one acre of total land area that is part of a larger common plan for development or sale if the larger common plan will ultimately disturb equal to or greater than one and less than five acres.” 10 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 10 of 21 PageID: 10 47. NJ CGP provides that “A RFA for a new stormwater discharge must be submitted at least 30 days prior to the commencement of the land disturbance that may result in that discharge.” NJ CGP, Part I.D.I.a. 48. NJ CGP requires that “A RFA shall be submitted by each person who is an operating entity for any part of the facility requiring a NJPDES permit for the stormwater discharge at the facility. When a facility is owned by one person but is currently operated by another person, the operating entity shall submit the RFA.” NJ CGP, Part I.D.3.a. 49. In order to obtain authorization under the NJ CGP, a complete RFA must be submitted. NJ CGP, Part I.C.1. 50. Land disturbances that may result in stormwater discharge authorized by the NJ CGP shall not commence until authorization under the NJ CGP is effective. NJ CCiP, Yart l.l;.Z. 51. NJ CGP provides that “the permittee shall conduct and document routine inspections of the facility to identify areas contributing to the stormwater discharge authorized by this permit and evaluate whether the stormwater pollution prevention plan (SWPPP) … is being properly implemented and maintained, or whether additional measures are needed to implement the SWPPP. (Routine inspections minimum weekly).” NJ CGP, Part I.E.3.a. 52. N.J.A.C. 7:14A-6.12(a) provides “A permittee shall, at all times, maintain in good working order and operate the treatment works and facilities which are installed or used by the permittee to achieve compliance with the terms and conditions of the discharge permit.” 53. 40 C.F.R. § 122.41(a), provides that permittees must comply with all conditions of their permit, and any permit noncompliance constitutes a violation of the CWA and is grounds for enforcement action. 11 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 11 of 21 PageID: 11 NEW JERSEY SITES 54. NVR’s New Jersey Sites are: Bella Vista, Gloucester; Cooper Crossing, Mercer; Emerald Estates, Sussex; Hampton Ridge Estates, Ocean; Harmony Glen, Monmouth; Middletown Crossing, Monmouth; Rolling Hills, Sussex; Cambridge Crossing (Fernwood North Major), Atlantic; Carriage Estates, Ocean; Country Woods, Burlington; Creekside at Delanco, Burlington; Eaglesmere (Glen Eyre-Palette III), Atlantic; Forest Walk, Cumberland; Greenwich Crossing, Gloucester; Hidden Oaks, Gloucester; High Pointe, Ocean; Independence Walk, Cumberland; Legacy at Cape May, Cape May; Legacy at Meadowcroft, Burlington; Lennox Run, Salem; Seapines (Silver Oaks), Atlantic; Spring Hollow, Cumberland; The Manors at Crossroads, Burlington; The Village at Cinnaminson Harbor, Burlington; Villages at Amberleigh, Uloucester; Westfield (;hase (C;anyon Creek), Camden; Winding Run, Ocean. NEW YORK GENERAL PERMIT 55. New York State Department of Environmental Conservation (“NYSDEC”) is the agency with the authority to administer the federal NPDES program in New York pursuant to Section 402(b) of the CWA, 33 U.S.C. § 1342(b). Under this authority, a State Pollutant Discharge Elimination System (“SPDES”) permit is required to be obtained from the NYSDEC for the discharge of pollutants from a point source to a water of the United States. 56. The NYSDEC issued a SPDES General Permit for Stormwater Discharges from Construction Activity (“CGP” or “Permit”), GP-02-02, on January 8, 2003. The Permit expired on January 8, 2008 and was administratively extended until May 1, 2008, when GP-0-08-001 became effective. GP-0-08-001 was subsequently replaced by GP-0-10-001, which became effective on January 29, 2010 and expired on January 28, 2015. The current CGP, GP-0-15-002, became effective on January 29, 2015 and expires on January 28, 2020. 12 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 12 of 21 PageID: 12 57. The NY CGP is applicable to “Construction activities involving soil disturbances of one (1) or more acres; including disturbances of less than one acre that are part of a larger common plan of development or sale that will ultimately disturb one of more acres of land.” NY CGP, Part I.A.1. 58. Owners and operators regulated under 40 C.F.R. § 122.26(b)(14)(x) or § 122.26(b)(15)(i) must seek CGP coverage in New York by filing a Notice of Intent (“NOI”) in accordance with the terms and conditions of the NY CGP. 59. NY CGP, APPENDIX A, provides that “Owner or Operator —means the person, persons or legal entity which owns or leases the property on which the construction activity is occurring; and/or an entity that has operational control over the construction plans and specifications, including the ability to make modifications to the plans and specifications.” 60. The term “SWPPP” means the Stormwater Pollution Prevention Plan, as defined in Part III of the NY CGP. 61. NY CGP provides that “An owner or operator of a construction activity that is not subject to the requirements of a regulated, traditional land use control MS4 must first develop a SWPPP in accordance with all applicable requirements of this permit and then submit a completed NOI … in order to be authorized to discharge under this permit. ….” NY CGP, Part II.A.1. 62. NY CGP also states that “Coverage under this permit authorizes stormwater discharges from only those areas of disturbance that are identified in the NOI. If an owner or operator wishes to have stormwater discharges from future or additional areas of disturbance authorized, they must submit a new NOI that addresses that phase of the development, unless otherwise notified by the Department.” NY CGP, Part II.B.S. 13 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 13 of 21 PageID: 13 63. NY CGP also addresses a change of owner or operator, providing “When property ownership changes or when there is a change in operational control over the construction plans and specifications, the original owner or operator must notify the new owner or operator, in writing, of the requirement to obtain permit coverage by submitting a NOI with the Department. Once the new owner or operator obtains permit coverage, the original owner or operator shall then submit a completed NOT [Notice of Termination] with the name and permit identification number of the new owner or operator to the Department at the address in Part II.A.1.. If the original owner or operator maintains ownership of a portion of the construction activity and will disturb soil, they must maintain their coverage under the permit.” NY CGP, Part II.C. 64. NY CGP also provides that “Permit coverage for the new owner or operator will be effective as of the date the Department receives a complete NOI, provided the original owner or operator was not subject to a sixty (60) business day authorization period that has not expired as of the date the Department receives the NOI from the new owner or operator.” NY CGP, Part II.C. 65. NY CGP requires that “The owner or operator must ensure that all erosion and sediment control practices and all post-construction stormwater management practices identified in the SWPPP are maintained in effective operating condition at all times.” NY CGP, Part IV.A.1. 66. NY CGP provides that “The owner or operator shall inspect, in accordance with the requirements in the most current version of the technical standard, New York State Standards and Specifications for Erosion and Sediment Control, the erosion and sediment controls identified in the SWPPP to ensure that they are being maintained ineffective operating condition at all times.” NY CGP, Part IV.B.1. 14 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 14 of 21 PageID: 14 67. NY CGP provides for prompt corrections of deficiencies, specifically “Within one business day of the completion of an inspection, the qualified inspector shall notify the owner or operator and appropriate contractor or subcontractor identified in Part III.A.6. of any corrective actions that need to be taken. The contactor or subcontractor shall begin implementing the corrective actions within one business day of this notification and shall complete the corrective actions in a reasonable time frame.” NY CGP, Part IV.C.S. 68. NY CGP requires that “The owner or operator shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the owner or operator to achieve compliance with the conditions of this permit and with the requirements of the SWPPP.” NY CGP, Part VII.L. G9. N4′ CGP states “Thy uwn~r ur op~ratur irYusl witr~ly wily all w~~cliliu~~s of ll~i5 permit.” and “failure of the owner or operator … to strictly adhere to any of the permit requirements contained herein shall constitute a violation of this permit..” NY CGP, Part VILA. and C. 70. 40 C.F.R. § 122.41(a), provides that permittees must comply with all conditions of their permit, and any permit noncompliance constitutes a violation of the CWA and is grounds for enforcement action. NEW YORK SITES 71. NVR’s NY Sites are: Auburn Meadows Subdivision —Phase 2, Ontario; Auburn Meadows Subdivision -Phase 3, Ontario; Auburn Meadows Subdivision -Phase 1, Ontario; Bakers Highland, Erie; Black Creek Woods, Monroe; Brandon Woods, Erie; Country Meadows, Erie; Country Oaks, Onondaga; Galant Woods, Monroe; Graceland Estates, Monroe; Harbor Heights, Onondaga; Heather Woods, Niagara; Kensington Woods, Monroe; Lawton Valley 15 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 15 of 21 PageID: 15 Hunt, Onondaga; Lockport Patios (Whispering Winds), Niagara; Minoa Farms, Onondaga; Newbury Park – Phases V & VI, Monroe; Oak Ridge Knolls, Monroe; Old Brookside, Ontario; Old Orchard, Niagara; Pheasant Run Subdivision, Wayne; Riverton Knolls -Phase 1 & 2, Monroe; Riverwalk, Niagara; Rolling Ridge, Erie; Roseland Park, Erie; Shadow Hill at Stonegate Heights -Phase 2, Onondaga; Skyland Meadows, Onondaga; Stonewood, Ontario; Summerfield Farms, Erie; Sun Meadows (Sorrell Hill), Onondaga; Tree Haven, Erie; Waterford Commons, Erie; Waterford Park, Erie; Waterhouse Landing, Onondaga; Wheatfield Lakes, Niagara; Wheatfield Lakes Patio, Niagara; Willow Creek, Niagara; bloodstream Estates, Erie. HEATHER WOODS, WHEATFIELD LAKES, WOODSTREAM ESTATES 72. EPA inspected Heather Woods, Niagara County, NY, on February 26 and 27, 2013. 73. EPA observed the following deficiencies during the February 2013 inspection: erosion and sediment control practices were not maintained properly. 74. The deficiencies EPA observed during the February 2013 inspections were not timely corrected. 75. EPA inspected Wheatfield Lakes Patio, Niagara County, NY, on February 27, 2013. 76. EPA observed the following deficiencies during the February 27, 2013 inspection: erosion and sediment control practices were not maintained properly. 77. The deficiencies EPA observed during the February 2013 inspections were not timely corrected. 78. EPA conducted an inspection of bloodstream Estates, Erie County, NY, on February 25 and 28, 2013. Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 16 of 21 PageID: 16 79. EPA observed the following deficiencies during the February 25 and 28, 2013, inspection: erosion and sediment practices were not maintained properly. 80. The deficiencies EPA observed during the February 2013 inspections were not timely corrected. FIRST CLAIM FOR RELIEF (Discharge Without a Permit) 81. Plaintiff realleges and incorporates by reference Paragraphs 1 through 71. 82. On information and belief, NVR discharged pollutants in storm water to waters of the United States without coverage under an Applicable Permit in violation of CWA Section 301, 33 U.S.C. § 1311 at the following New Jersey and New York sites: Della Vista, Gloucester; Cooper Crossing, Mercer; Emerald Estates, Sussex; Hampton Ridge Estates, Ocean; HAl’illUily C~ICIl~ Mu~unuulh; Middletown Crossing, Monmouth; Rolling Hills, Sussex; Cambridge Crossing (Fernwood North Major), Atlantic; Carriage Estates, Ocean; Country Woods, Burlington; Creekside at Delanco, Burlington; Eaglesmere (Glen Eyre-Palette III), Atlantic; Forest Walk, Cumberland; Greenwich Crossing, Gloucester; Hidden Oaks, Gloucester; High Pointe, Ocean; Independence Walk, Cumberland; Legacy at Cape May, Cape May; Legacy at Meadowcroft, Burlington; Lennox Run, Salem; Seapines (Silver Oaks), Atlantic; Spring Hollow, Cumberland; The Manors at Crossroads, Burlington; The Village at Cinnaminson Harbor, Burlington; Villages at Amberleigh, Gloucester; Westfield Chase (Canyon Creek), Camden; Winding Run, Ocean; Auburn Meadows Subdivision – Phase 2, Ontario; Auburn Meadows Subdivision -Phase 3, Ontario; Auburn Meadows Subdivision -Phase 1, Ontario; Bakers Highland, Erie; Black Creek Woods, Monroe; Brandon Woods, Erie; Country Meadows, Erie; Country Oaks, Onondaga; Galant Woods, Monroe; Graceland Estates, Monroe; Harbor Heights, Onondaga; Heather Woods, Niagara; Kensington Woods, Monroe; Lawton Valley Hunt, Onondaga; Lockport Patios (Whispering Winds), Niagara; Minoa Farms, Onondaga; Newbury Park – Phases V & VI, Monroe; Oak Ridge Knolls, Monroe; Old Brookside, Ontario; Old Orchard, Niagara; Pheasant Run Subdivision, Wayne; Riverton Knolls – Phase 1 & 2, Monroe; Riverwalk, Niagara; Rolling Ridge, Erie; Roseland Park, Erie; Shadow Hill at Stonegate Heights -Phase 2, Onondaga; Skyland Meadows, Onondaga; Stonewood, Ontario; Summerfield Farms, Erie; Sun Meadows (Sorrell Hill), Onondaga; Tree Haven, Erie; Waterford Commons, Erie; Waterford Park, Erie; Waterhouse Landing, Onondaga; Wheatfield Lakes, Niagara; Wheatfield Lakes Patio, Niagara; Willow Creek, Niagara; Woodstream Estates, Erie. 17 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 17 of 21 PageID: 17 83. Unless enjoined, these violations will recur at other construction sites. 84. Sections 309(b) and (d) of the CWA, 33 U.S.C. §§ 1319(b) and (d), and the Debt Collection Improvement Act of 1996, 31 U.S.C. § 3701, provide that any person who discharges pollutants in storm water without a permit in violation of Section 301 of the CWA, 33 U.S.C. § 1311, is liable for injunctive relief and for civil penalties not to exceed $32,500 per day for each violation occurring after March 15, 2004, but prior to and including January 12, 2009, and $37,500 per day for each violation occurring after January 12, 2009, but prior to and including November 2, 2015. SECOND CLAIM FOR RELIEF, AN ALTERNATIVE TO FIRST CLAIM FOR RELIEF (Failure to Comply with a Permit) 85. Plaintiff realleges and incorporates by reference Paragraphs 1 through 71. 86. The NVR developments at the following Ncw Jcrscy and Ncw York Sitcs wcrc each part of a development for which there was a different party that appears to have done some initial clearing activities for the property prior to NVR obtaining ownership and/or operating at the development: Bella Vista, Gloucester; Cooper Crossing, Mercer; Emerald Estates, Sussex; Hampton Ridge Estates, Ocean; Harmony Glen, Monmouth; Middletown Crossing, Monmouth; Rolling Hills, Sussex; Cambridge Crossing (Fernwood North Major), Atlantic; Carriage Estates, Ocean; Country Woods, Burlington; Creekside at Delanco, Burlington; Eaglesmere (Glen Eyre-Palette III), Atlantic; Forest Walk, Cumberland; Greenwich Crossing, Gloucester; Hidden Oaks, Gloucester; High Pointe, Ocean; Independence Walk, Cumberland; Legacy at Cape May, Cape May; Legacy at Meadowcroft, Burlington; Lennox Run, Salem; Seapines (Silver Oaks), Atlantic; Spring Hollow, Cumberland; The Manors at Crossroads, Burlington; The Village at Cinnaminson Harbor, Burlington; Villages at Amberleigh, Gloucester; Westfield Chase (Canyon Creek), Camden; Winding Run, Ocean; Auburn Meadows Subdivision – Phase 2, Ontario; Auburn Meadows Subdivision -Phase 3, Ontario; Auburn Meadows Subdivision -Phase 1, Ontario; Bakers Highland, Erie; Black Creek Woods, Monroe; Brandon Woods, Erie; Country Meadows, Erie; Country Oaks, Onondaga; Galant Woods, Monroe; Graceland Estates, Monroe; Harbor Heights, Onondaga; Heather Woods, Niagara; Kensington Woods, Monroe; Lawton Valley Hunt, 18 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 18 of 21 PageID: 18 Onondaga; Lockport Patios (Whispering Winds), Niagara; Minoa Farms, Onondaga; Newbury Park – Phases V & VI, Monroe; Oak Ridge Knolls, Monroe; Old Brookside, Ontario; Old Orchard, Niagara; Pheasant Run Subdivision, Wayne; Riverton Knolls – Phase 1 & 2, Monroe; Riverwalk, Niagara; Rolling Ridge, Erie; Roseland Park, Erie; Shadow Hill at Stonegate Heights -Phase 2, Onondaga; Skyland Meadows, Onondaga; Stonewood, Ontario; Summerfield Farms, Erie; Sun Meadows (Sorrell Hill), Onondaga; Tree Haven, Erie; Waterford Commons, Erie; Waterford Park, Erie; Waterhouse Landing, Onondaga; Wheatfield Lakes, Niagara; Wheatfield Lakes Patio, Niagara; Willow Creek, Niagara; Woodstream Estates, Erie. 87. To the extent NVR alleges that it did not have a separate responsibility to obtain coverage under the Applicable Permit but that it instead was provided coverage under other parties’ permits, NVR violated terms of the CGP including, inter alia, NVR did not submit to the State agencies the required notifications. 88. Unless enjoined, these violations will recur at other construction sites. 89. Sections 309(b) and (d) of the CWA, 33 U.S.C. §§ 1319(b) and (d), and the Dcbt Collection Improvement Act of 1996, 31 U.S.C. § 3701, provide that any person who violates any condition or limitation in a permit issued under Section 402 of the CWA, 33 U.S.C. § 1342, is liable for injunctive rclicf and for civil penalties not to exceed $32,500 per day fol~ each violation occurring after March 15, 2004, but prior to and including January 12, 2009, and $37,500 per day for each violation occurring after January 12, 2009, but prior to and including November 2, 2015. THIRD CLAIM FOR RELIEF (Failure to Comply with a Permit) 90. Plaintiff realleges and incorporates by reference Paragraphs 1 through 80. 91. After NVR obtained permit coverage in 2010 by filing NOIs for Heather Woods, Wheatfield Lakes Patio, and Woodstream Estates, NVR failed to comply with the permit by not 19 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 19 of 21 PageID: 19 properly maintaining erosion and sediment control in violation of NYS CGP, including Sections II.C.1 and IV.A.1., and not timely correcting deficiencies. 92. Unless enjoined, these violations will recur at other construction sites. 93. Sections 309(b) and (d) of the CWA, 33 U.S.C. §§ 1319(b) and (d), and the Debt Collection Improvement Act of 1996, 31 U.S.C. § 3701, provide that any person who violates any condition or limitation in a permit issued under Section 402 of the CWA, 33 U.S.C. § 1342, is liable for injunctive relief and for civil penalties not to exceed $32,500 per day for each violation occurring after March 15, 2004, but prior to and including January 12, 2009, and $37,500 per day for each violation occurring after January 12, 2009, but prior to and including November 2, 2015. YKAY~K N’Ult l~:Ll~~’ WHEREFORE, the United States of America respectfully requests that the Court grant the following relief: 1. Permanently enjoin NVR, under Section 309(b) of the CWA, 33 U.S.C. § 1319(b), from any and all future violations of the conditions and limitations of the Applicable Permits and the CWA and from discharges of pollutants except as authorized by a NPDES permit issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342; 2. Order NVR to comply with the conditions and limitations of the Applicable Permit; 3. Order NVR to pay a civil penalty not to exceed $32,500 per day per violation occurring prior to and including January 12, 2009, and $37,500 per day per violation occurring after January 12, 2009, but prior to and including November 2, 2015; 4. Award the United States its costs in this action; and 20 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 20 of 21 PageID: 20 5. Grant such other relief as the Court deems just and proper. Respectfully submitted, ELLEN MAHAN Deputy Section Chief Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice /s/ Peter M. Flynn PETER M. FLYNN Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, DC 20044 (202) 514-4352 peter. flynn(a~,usdoj .Gov WILLIAM E. FITZPATRICK Acting United States Attorney ALLAN B. K. URGENT Assistant United States Attorney United States Attorney’ Office District of New Jersey 970 Broad Street, Suite 700 Newark, NJ 07102 (973) 297-2079 Allan.ur~ent(cr~,usdoj. ~ov OF COUNSEL: CHRISTOPHER SAPORITA Assistant Regional Counsel U.S. Environmental Protection Agency, Region 2 290 Broadway New York, NY 10007 21 Case 2:17-cv-04346 Document 1 Filed 06/15/17 Page 21 of 21 PageID: 21

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