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18 ELR 21215 | Environmental Law Reporter | copyright © 1988 | All rights reserved Merry v. Westinghouse Electric Corp. No. 86-1673 (M.D. Pa. February 25, 1988)The court holds that plaintiffs in a Federal Water Pollution Control Act (FWPCA) citizen suit have adequately raised the issue of ongoing violations to support the court's jurisdiction, and that the Environmental Protection Agency's (EPA's) involvement in a remedial investigation/feasibility study (RI/FS) does not bar plaintiffs' citizen suit under the FWPCA or the Resource Conservation and Recovery Act (RCRA). The court first holds that it has jurisdiction over the FWPCA claims, even though plaintiffs' allegations of FWPCA violations are phrased in the past tense. Plaintiffs' prayer for relief could be interpreted to imply that the alleged violations are continuing, and defendant's discharge monitoring reports (DMRs) indicate that it violated its permit after the commencement of the citizen suit. The court holds that the complaint sufficiently alleges permit violations, as well as injury resulting from the alleged effluent discharges. Following its opinion in Fishel v. Westinghouse Electric Corp., 16 ELR 20001, the court holds that plaintiffs' notice of violation to defendants complied with the requirements of FWPCA § 505(b). Fishel had held that a notice was adequate because it was timely and detailed enough to enable a defendant to identify the specific regulations and conduct at issue. The court also holds that EPA and the state authorities had actual notice of defendant's alleged violations because they were published in defendant's DMRs. Turning to the issue of EPA's involvement in the RI/FS, the court holds that plaintiff's FWPCA and RCRA citizen suits are not barred by EPA's actions. There is no evidence that EPA is actually engaging in a removal action or diligently proceeding with a remedial action, nor has EPA taken any action to ensure that the RI/FS progresses satisfactorily. In addition, the court declines to exercise the doctrine of primary jurisdiction to stay plaintiffs' federal and state claims pending completion of the RI/FS, since the court's exercise of jurisdiction would not disrupt EPA's exercise of authority. [Other decisions in this litigation are published at 18 ELR 21218 and 21220.] Counsel for Plaintiffs Counsel for Defendant Caldwell, J.: Opinion Introduction and Background The plaintiffs commenced this action on November 25, 1986, seeking response costs, damages, civil penalties and equitable relief under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq. ("CWA"), and the law of Pennsylvania. Before the court are Westinghouse's motion for partial summary judgment on the plaintiffs' CWA claims and its related motion in limine to preclude the introduction of evidence of its alleged violations of a National Pollutant Discharge Elimination System Permit ("NPDES permit"). On April 3, 1986, the Pennsylvania Department of Environmental Resources ("DER") issued Westinghouse an NPDES permit. Valid until April 3, 1991, it allows Westinghouse to discharge groundwater effluent from an air stripping tower into an unnamed tributary of Rock Creek and establishes certain concentration limits for identified substances in the effluent. In Count III of their complaint, the plaintiffs contend that Westinghouse has exceeded or otherwise violated the scope of the permit by releasing into the creek unauthorized concentrations of certain hazardous substances. The plaintiffs claim that the alleged releases constitute violations of the CWA and subject Westinghouse to civil penalties. On December 10, 1987, Westinghouse filed a motion in limine to bar the plaintiffs from introducing at trial evidence of the alleged NPDES permit violations. On January 22, 1988, after completion of the trial in the second phase of this proceeding, the court dismissed the motion without prejudice. Westinghouse has now requested the court to reconsider that motion and has filed a motion for summary judgment raising essentially the same arguments. Both motions will now be considered together. Discussion Normally, the court would evaluate Westinghouse's motion for summary judgment under the following, well established standard: Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, Adickes v. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) and must resolve all reasonable doubts as to the existence of a genuine issue of material fact against the movant. Hersh v. Allen Products Company, Inc., 789 F.2d 230, 232 (3d Cir. 1986). Here, however, Westinghouse is alleging a lack of subject matter jurisdiction which is a ground for dismissal under Fed. R. Civ. P. 12(b)(1) rather than for summary judgment under Fed. R. Civ. P. 56. Solomon v. Solomon, 516 F.2d 1018 (3d Cir. 1975); Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183 (5th Cir. 1986). A summary judgment is a ruling on the merits of the case predicated upon a determination that there are no genuine issues of material fact requiring trial. A dismissal for lack of subject matter jurisdiction, on the other hand, is not a disposition on the merits and consequently does not have res judicata effect. When subject matter jurisdiction is questioned, the court must satisfy itself of its authority to hear the case, and in so doing, may resolve factual disputes. Prakash v. American University, 727 F.2d 1174 (D.C. Cir. 1984). The court has considerable latitude in devising the procedures it will follow. Id. It may dismiss for lack of jurisdiction on any of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint, the undisputed facts in the record and the court's resolution of disputed facts. Guidry. With that in mind, we turn to the merits of Westinghouse's motions. Section 505(a) of the CWA, 33 U.S.C. § 1365(a), authorizes private citizens to commence civil actions for injunctive relief and the imposition of civil penalties in federal district court "against any person . . . who is alleged to be in violation of (A) an effluent standard or limitations. . . ." Recently, the United States Supreme Court discussed section 505(a) in Gwaltney v. Chesapeake Bay Foundation, U.S. , 108 S.Ct. 376, 98 L. Ed. 2d 306 [18 ELR 20142] (1987). The Court held that citizen suits under section 505(a) may be brought only to enjoin ongoing or future violations of the CWA, and not to address violations that occurred wholly in the past. It is on the basis of that ruling that Westinghouse now moves for summary judgment claiming that the plaintiffs' complaint alleges only past violations of the NPDES permit. Thus, Westinghouse concludes, section 505(a) does not confer jurisdiction on the court and the plaintiffs' CWA claims must be dismissed. The Gwaltney court made it clear that for federal court jurisdiction to exist it is not necessary for the plaintiffs to prove that the defendant is in violation of the Act at the commencement of the suit. Jurisdiction exists if the plaintiffs make a good faith allegation of continuous or intermittent violations. The plaintiffs argue that the complaint makes such an allegation, but that if the court finds otherwise, they should be granted leave to amend. The relevant substantive portions of the complaint provide as follows: 80. Defendant has violated the provisions of Section 301 of the CWA by discharging pollutants into the navigable waters of the United States without a permit. 81. Defendant's unpermitted discharges of toxic pollutants into the navigable waters of the United States have created an imminent and substantial endangerment to plaintiffs' health and welfare. Those paragraphs, as well as the rest of the averments in the complaint, clearly were drafted in the past-tense and cannot fairly be read as alleging ongoing violations of the Act. The prayer for relief casts doubt upon that conclusion, however, because the plaintiffs ask the court to "order defendant to cease and desist the illegal acts set forth hereinabove," thus implying that the alleged unlawful conduct is continuing. The court will construe that ambiguity in the plaintiffs' favor and hold that the complaint sufficiently alleges ongoing violations of the CWA and that under the Gwaltney standards the court has jurisdiction. The court need not rely solely upon the complaint in order to reach the conclusion that jurisdiction exists, however. The plaintiffs have submitted copies of Discharge Monitoring Reports ("DMRs") that Westinghouse filed with the Environmental Protection Agency ("EPA"). The DMRs, the accuracy of which are not disputed by Westinghouse, evidence discharges in excess of Westinghouse's NPDES permit limitations during April, June and July 1987, after this action was commenced. Thus we are satisfied that we have jurisdiction over the plaintiffs' CWA claims. We turn now to the remaining objections raised by Westinghouse in its motion in limine and restated in its motion for summary judgment. Westinghouse contends that the complaint is deficient because it fails to allege any violations of the NPDES permit or any injury resulting from effluent discharges. We do not read the plaintiffs' complaint so narrowly. Paragraphs 80 and 81, set out above, clearly refer to NPDES permit violations and allege injury. Furthermore, the complaint provides Westinghouse with ample notice of the plaintiffs' CWA claims, which is all that is required. The full development of the facts and the narrowing of the issues are accomplished through discovery. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Westinghouse makes much of the use in paragraphs 80 and 81 of the words "without a permit" and "unpermitted" and argues that those words can be interpreted in no other way than to mean "in the absence of a permit." Westinghouse contends that since it had a valid NPDES permit and since the complaint fails to allege that it discharged pollutants "in violation of" that permit, it did not provide them with fair notice of the plaintiffs' claims. Westinghouse's technical objections are not well taken. Any discharge of pollutants in excess of that allowed by a permit reasonably can be construed as an "unpermitted" discharge. Since we find the complaint sufficient to apprise Westinghouse of the plaintiffs' CWA claims, we turn to Westinghouse's contention that the claims are barred because the plaintiffs failed to notify Westinghouse and federal and state authorities of the alleged NPDES permit violations sixty days before filing this action. See 33 U.S.C. § 1365(b). We rejected a similar contention in Fishel v. Westinghouse Electric Corp., 617 F. Supp. 1531 [16 ELR 20001] (M.D. Pa. 1985), and incorporate here the applicable portions of that memorandum. Moreover, EPA and DER had notice-in-fact of Westinghouse's permit violations because Westinghouse published them in the DMRs it submitted to those agencies. See Profit v. Commissioners, Township of Bristol, 754 F.2d 504 [15 ELR 20209] (3d Cir. 1985). Conclusion For all of the foregoing reasons, Westinghouse's motion for partial summary judgment in the plaintiffs' CWA claims will be denied. With respect to Westinghouse's motion in limine, since we find the plaintiffs' CWA claim to be viable, we cannot say that evidence concerning the alleged NPDES permit violations is irrelevant and thus inadmissible. That is not to say, however, that it will be admissible during all phases of the trial. Westinghouse's motion in limine and the plaintiffs' response thereto are couched in general terms and do not address the issues as they may arise in the several phases of this trial. Accordingly, Westinghouse's motion in limine will be denied, but the court will entertain specific objections at trial when evidence of the alleged permit violations is offered. Order AND NOW, this 25th day of February 1988, upon consideration of the defendant's motion for partial summary judgment on the plaintiffs' Clean Water Act claim and the defendant's motion in limine to preclude evidence of alleged NPDES permit violations, it is ordered that the defendant's motions are denied. Memorandum The plaintiffs brought this action under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6901 et seq., the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., and the law of Pennsylvania. They seek the following relief: (1) an order that Westinghouse supply each plaintiff with potable water and provide public water hookups; (2) an order that Westinghouse take remedial actions to abate the harm caused by the release of hazardous chemicals; (3) an order that Westinghouse cease and desist the illegal activities alleged; (4) damages; and (5) civil penalties under the CWA and the RCRA. Now ripe for disposition is Westinghouse's motion for partial summary judgment regarding the plaintiffs' claims for injunctive relief and civil penalties. A court shall render summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A material fact is one which might affect the outcome of a suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, , 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211 (1986). Factual disputes that are irrelevant or unnecessary are not to be considered. Id. Summary judgment will not lie if the dispute as to a material fact is "genuine," that is, "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. at , 106 S. Ct. at 2510, 91 L. Ed. 2d at 212. An adverse party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). In determining whether there is an issue for trial the court must view the facts and the inferences drawn therefrom in the light most favorable to the non-moving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., U.S. , , 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538, 553 (1986). It is undisputed that the plaintiffs' claims under CERCLA are for response costs only. Accordingly, the court will restrict its discussion of Westinghouse's motion to the CWA and the RCRA. Section 7002(a)(1) of the RCRA, 42 U.S.C. § 6972(a)(1), which authorizes citizen suits for injunctive relief and civil penalties, provides, in part, as follows: Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf -- (1)(A) against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or (B) against any person . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. . . . The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce the permit, standard regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both . . . and to apply any appropriate civil penalties under section 6928(a) and (g) of this title. Westinghouse argues that the plaintiffs' claims under section 7002(a)(1)(B) are barred by section 7002(b)(2)(b), 42 U.S.C. § 6972(b)(2)(B), which provides: (B) No action may be commenced under subsection (a)(1)(B) of this section if the Administrator, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment -- (i) has commenced and is diligently prosecuting an action under section 6973 of this title or under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C.A. § 9606]; (ii) is actually engaging in a removal action under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C.A. § 9604]; (iii) has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C.A. § 9604] and is diligently proceeding with a remedial action under the Act [42 U.S.C.A. § 9601 et seq.]; or (iv) has obtained a court order (including a consent decree) or issued an administrative order under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of [1]980 [42 U.S.C.A. § 9606] or section 6973 of this title pursuant to which a responsible party is diligently conducting a removal action, Remedial Investigation and Feasibility Study (RIFS), or proceeding with a remedial action. In the case of an administrative order referred to in clause (iv), actions under subsection (a)(1)(B) of this section are prohibited only as to the scope and duration of the administrative order referred to in clause (iv). Specifically, Westinghouse relies upon subparagraphs (ii) and (iii).[1] The evidence tends to show that the EPA is not "actually engaging in a removal action" and is not "diligently proceeding with a remedial action." The RIFS is intended and designed to obtain the necessary data to determine the nature and extent of the contamination problem at and around the plant site, and ultimately to provide the basis for determining the remedial action to be taken. Westinghouse has only recently submitted its work plan pertaining to the first phase of the RIFS, and that submission was outside of the time limits established in the consent order. There is no evidence in the record that, despite Westinghouse's late work plan submission, the EPA has taken any action to ensure that the RIFS progresses satisfactorily. Since Westinghouse, as the movant, has the burden of showing diligence on the part of the EPA, and since it has not done so, the court will deny its summary judgment motion with respect to claims under section 7002(a)(1)(B) of the RCRA. Westinghouse admits that the plaintiffs' claims under section 7002(a)(1)(A) of the RCRA, and under section 505 of the CWA, 33 U.S.C. § 1365, a similar provision, are not expressly barred by the respective Acts. However, Westinghouse argues that the court should defer to the primary jurisdiction of the EPA and stay those claims, as well as the plaintiffs' state law claims, until the EPA has decided how the plant site should be cleaned up. The plaintiffs argue, in effect, that the EPA has been ineffective in alleviating the dangers at the site and that the court should take immediate action. The doctrine of primary jurisdiction should be invoked sparingly where it would serve to preempt a citizens' suit. Student Public Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, 579 F. Supp. 1528 [14 ELR 20450] (D.N.J. 1984), aff'd, 759 F.2d 1131 [15 ELR 20427] (3d Cir. 1985). The doctrine is ideally suited to the water pollution area, since discharge permit applications involve many technical questions which courts are generally not qualified to decide without the aid of an administrative decision. However, when the enforcement action is brought by a citizen, or by the Federal Government where the state has permit issuance authority, or vice versa, the doctrine of primary jurisdiction should be used with care. Otherwise, the state or Federal Government could, by delay in action or applications, frustrate the congressional intent to broaden enforcement authority. Id. at 1537 (quoting Zener, The Federal Law of Water Pollution Control, in Federal Environmental Law (Dolgin & Gilbert, eds., 1974) at 733). The statutory enforcement schemes before the court are not so technical or suffused by policy consideration that the exercise of jurisdiction would disrupt the EPA's exercise of its authority. Nor are the questions to be resolved beyond the normal competence of a court.[2] See O'Leary v. Moyer's Landfill, Inc., 523 F. Supp. 642 (E.D. Pa. 1981).[3] Thus, considering Westinghouse's unexplained delay in submitting its work plan and EPA's apparent inactivity in response thereto, we see no good reason to decline to accept jurisdiction ofthis case. Conclusion The plaintiffs' claims for injunctive relief and civil penalties under the CWA and the RCRA are barred neither by the statutes nor by the doctrine of primary jurisdiction. Therefore Westinghouse's motion for partial summary judgment will be denied. Order AND NOW, this 25th day of February 1988, upon consideration of the defendant's motion for partial summary judgment regarding the plaintiffs' claims for injunctive relief and civil penalties, it is ordered that the defendant's motion is denied. 1. More to the point is subparagraph (iv), because on March 10, 1987, the Environmental Protection Agency ("EPA") issued a consent order pursuant to section 106(a) of CERCLA, 42 U.S.C. § 9606(a), directing Westinghouse to conduct an RIFS. It appears, however, that Westinghouse is not diligently conducting the RIFS since it submitted its work plan outside of the time limits established by the order. 2. In fact, the drafters of section 505 of the CWA unequivocally asserted that "[e]nforcement of pollution regulations is not a technical matter beyond the competence of the courts." S. Rep. No. 92-414, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin. News 3668, 3747. 3. In O'Leary, the court was faced with issues similar to those in this case. The court declined to defer to the DER and instead fashioned an injunctive remedy designed to elicit the expertise of the DER and the EPA while maintaining the enforcement powers of the court. The parties were ordered to confer with the governmental agencies in preparing a proposed order detailing the steps the defendants were to take to halt the further release of hazardous materials. 18 ELR 21215 | Environmental Law Reporter | copyright © 1988 | All rights reserved |