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July 25, 1986


The opinion of the court was delivered by: VANARTSDALEN


 Findings of Fact

 The Northeast Water Pollution Control Plant

 2. The neighborhood surrounding the Northeast Plant contains a mixture of residential, commercial and industrial land uses. The intervenor-defendants, Rohm and Haas Company and Allied Corporation, both own and operate large industrial chemical manufacturing plants in close proximity. There are also other industries in the vicinity, including a smelting plant and a rendering plant. Most of the individual plaintiffs are residents of the neighborhood.

 3. The Northeast Plant is a sewage treatment and disposal plant. Its primary function is to process the liquid wastes from the sewer systems of the northeastern areas of Philadelphia. It also receives influent from some sewer systems serving areas of Bucks and Montgomery counties. Its daily influent includes both storm sewer and sanitary sewer liquid wastes. Both of the intervenor-defendants discharge industrial liquid wastes into sewers that carry the sewage to the Northeast Plant.

 4. The present plant capacity can process 210 million gallons per day. The industrial wastes processed by the Northeast Plant constitute approximately seven percent of the normal total dry weather flow of influent. The plant's total capacity is adequate for all present and reasonably foreseeable future uses.

 5. The Northeast Plant has operated as a sewage treatment and disposal plant continuously since at least 1923. In the early 1950's the plant underwent substantial renovations. As the result of extensive litigation commenced in 1978 involving the City of Philadelphia, the Environmental Protection Agency, the Delaware River Basin Commission and various other entities and individuals, a consent decree was filed on May 30, 1979 and approved by Hon. J. William Ditter, Jr., of this court on September 21, 1979. The decree required extensive reconstruction and upgrading of the facilities of the Northeast Plant in order to comply with various standards, primarily involving the Clean Water Act, 33 U.S.C. § 1251 et seq., as to the effluent that was being discharged by the Northeast Plant into the Delaware River. The capital expenditures by the City of Philadelphia in carrying out the renovations have exceeded Three Hundred Million Dollars. As of the time of the trial of the present case, most of the planned reconstruction was completed, and the renovated system was in operation. Certain malfunctioning equipment remained to be corrected and some additional processing equipment had yet to be installed and tested.

 6. The Northeast Plant is one of three sewage treatment and disposal plants located in the City of Philadelphia. These plants are all under the operation and control of the Water Department of the City of Philadelphia.

 Procedural Background of the Case

 7. The plaintiffs consist of a nonprofit corporation, Concerned Citizens of Bridesburg, and a group of approximately 130 individuals. The individual plaintiffs all live in the vicinity of the Northeast Plant and allege injury and harm from malodors being emitted from the Northeast Plant. Concerned Citizens of Bridesburg is incorporated under the laws of Pennsylvania and its members are residents of the Bridesburg area of Philadelphia. The complaint was filed on January 3, 1985. Plaintiffs seek to enjoin defendants from operating the Northeast Plant "in violation of the Clean Air Act, 42 U.S.C. § 7401 et seq." The sole alleged claim for federal jurisdiction is the "citizen lawsuit provision of the Clean Air Act, 42 U.S.C. § 7604 and 28 U.S.C. § 1331." Neither the complaint nor the amended complaint (filed April 12, 1985) expressly assert a claim based on any other federal statute, nor on the basis of any violation of state statutory or common law, and there is no request contained in the complaint or amended complaint that the court hear or determine any state claim on the basis of pendent jurisdiction. The relief sought is solely equitable injunctive relief.

 8. As required by the Clean Air Act, 42 U.S.C. § 7410, Pennsylvania adopted, and the Administrator of the United States Environmental Protection Agency (EPA) approved, a State Implementation Plan (SIP). The Pennsylvania SIP, as approved (40 C.F.R. § 52.2020), incorporated the Pennsylvania Air Pollution Control Act, 35 P.S. § 4001 et seq., and state regulations adopted pursuant to the Act, and also incorporated the Philadelphia Air Management Code and regulations adopted pursuant to the Code. In substance, both the Pennsylvania Air Pollution Control Act and the Philadelphia Air Management Code, and the regulations adopted pursuant to the Act and the Code, prohibit malodorous emissions that constitute an air pollution nuisance, defined in part as being an emission of an air contaminant (which includes malodors) that tends to interfere with health, repose or safety or causes severe annoyance or discomfort or is offensive, objectionable or both to persons because of inherent chemical or physical properties of the emission.

 9. Defendants moved to dismiss the complaint contending that the State and City odor emissions controls could not properly be included in a federally approved SIP adopted pursuant to the Clean Air Act, and therefore could not be enforced in federal court by a citizen's complaint filed under 42 U.S.C. § 7604. The motion to dismiss was denied by memorandum opinion and order dated April 23, 1985.

 10. On May 11, 1985, defendants sought both a reconsideration and stay of proceedings. Defendants contended that EPA recognized that it had exceeded its authority in approving the Pennsylvania SIP that incorporated by reference State and City odor regulations and that EPA was in the process of promulgating a regulation that would withdraw approval of such portions of the Pennsylvania SIP. Defendants asserted that when EPA would thus "correct" the error, this court would lose jurisdiction under the Clean Air Act. The motions for reconsideration and a stay were denied.

 11. On May 2, 1986, after public notice and hearing, EPA officially approved a revision to the Pennsylvania SIP, which effectively eliminated from the Pennsylvania SIP all odor emission control regulations. In so doing, EPA concluded that such regulations have "no significant relation to the attainment and maintenance of the National Ambient Air Quality Standards (NAAQS)." EPA further concluded that "there is no direct or indirect relationship between the State odor emission regulations cited below and any criteria pollutant." The revision was to be effective thirty days from date of publication in the Federal Register. Publication occurred on May 20, 1986 (Fed. Reg. 18438). Although the revision would be effective as of June 19, 1986, plaintiffs have filed with the Administrator of EPA a request for a stay pending review. On June 20, 1986, plaintiffs filed a petition for review with the United States Court of Appeals for the Third Circuit.

 12. On March 24, 1986, plaintiffs moved to amend the complaint to allege a violation of Air Management Regulation V, Section X - Odors of the Pennsylvania SIP. The stated reason for the motion was that this regulation was not proposed for revision or deletion by EPA and would therefore be a valid basis for this court retaining federal jurisdiction even if the EPA revision was upheld as valid. Although the motion to amend was granted, plaintiffs, in fact, never filed the proposed second amended complaint and the case proceeded to trial on May 5, 1986 without such amendment. In any event, the EPA revision of the Pennsylvania SIP, as finally adopted, also eliminated Air Management Regulation V, Section X from the SIP.

 14. No notice or copy of a notice was ever sent to the Attorney General of Pennsylvania. Before a resident of Pennsylvania may file a private action under the Pennsylvania Air Pollution Control Act to abate a nuisance or restrain or prevent a violation of the Act, thirty days' notice of intention to so proceed is statutorily required to be served upon the Attorney General of Pennsylvania. 35 P.S. § 4010(f).

 Odor Pollution Control

 15. Air Management Services, a division of the City of Philadelphia, Department of Public Health, is charged with the duty of enforcing the Air Management Code of Philadelphia and the regulations promulgated pursuant to the Code. Air Management Services also enforces the Pennsylvania Air Pollution Control Act within the geographical limits of the City of Philadelphia, in the specific instances that the Act is more stringent than the Code.

 16. William Reilly is the Assistant Health Commissioner for Air Management Services for the City of Philadelphia. He has held this position since 1972. Air Management Services employs approximately twelve full-time air pollution inspectors who, among other duties, investigate complaints of air pollution, including complaints of violation of the odor regulations of the Air Management Code and Air Pollution Control Act. Air pollution inspectors are available, or at least on call, to make investigations of complaints and to make inspections twenty-four hours a day, seven days a week. During regular week-day working hours (Mondays through Fridays from 8:30 a.m. to 5:00 p.m.), approximately ten inspectors are available. From 5:00 p.m. to 8:30 a.m. on week-days and all the hours of Saturdays and Sundays, there is only one inspector on call to answer complaints. The air pollution inspectors' area of responsibility covers all of Philadelphia, and includes inspecting all complaints of air pollution from whatever source or area of the City and of all types, including odor pollution. The Northeast Plant operates continuously, i.e., twenty-four hours per day, every day of the year.

 17. Air pollution inspectors receive special training in odor detection as to the type and intensity of odor that would constitute a violation of the Air Management Code and/or the Pennsylvania Air Pollution Control Act. The Air Management Code defines "odor" as follows:

Smells or aromas which are unpleasant to persons or which tend to lessen human food and water intake, interfere with sleep, upset appetite, produce irritation of the upper respiratory tract or create symptoms of nausea or which by their inherent chemical or physical nature or method of processing are or may be detrimental or dangerous to health.

 18. On each inspection where there is a determination of a violation, the air pollution inspector is required to complete a written form that notes, inter alia, the complainant's name and address, the time, the facility emitting the odor, whether a violation was determined to exist and, if so, its duration together with the inspector's statement of his observations, the person contacted at the offending facility, together with such person's explanation, if any, and the date and name of the inspector.

 19. Based on records of Air Management Services, inspectors made determinations and filed written reports of violations by the Northeast Plant of the odor provisions of the Air Management Code and/or the Pennsylvania Air Pollution Control Act five times in 1983; fifty-five times in 1984; 107 times in 1985 and eight times in 1986 to the date of trial. The records of the Water Department, which received notices of violations, show a slight deviation from these figures. The records further establish a significantly higher number of complaints made, usually by residents of the area living in close proximity to the Northeast Plant, than violations determined by the inspectors. This difference between the number of complaints and the number of violations as determined by the inspectors is accounted for in two major ways: first, the time lapse between the complaint and the inspection caused, in some instances, the odor to dissipate; second, the complainant's sense of smell suggesting a violation did not always agree with the inspector's sense of smell. To constitute a violation, malodors discharged into the ambient air by the Northeast Plant have to be of sufficient strength to cause an odor violation on adjoining properties beyond the boundaries of the Northeast Plant.

 20. By far, the greatest number and frequency of complaints and determinations of violations occurred between May 1984 and July 1985. It was during this period of time that the most extensive amount of renovation of the plant was being undertaken. From August 1985 through the end of the calendar year 1985, there were twelve violations determined upon eighteen complaints. In 1986, there were no complaints or violations for the months of January and February; there were ten complaints with seven violations noted in March, and five complaints with one violation noted in April. In March 1986, electrical circuits in the Northeast Plant malfunctioned and, as a result, the primary sedimentation tanks could not properly be pumped to remove the settled solids, which proceeded to decay causing a severe odor problem for approximately one week.

 21. The odors emanating from the Northeast Plant were graphically described by individual plaintiff-witnesses who lived in the vicinity, all of whom testified to the adverse effects the odors had upon them and/or their family and friends. The adverse effects were both physical and emotional.

 22. Joseph Anderlonis, pastor of a church located approximately one-quarter of a mile from the Northeast Plant, detected at least four types of odors in the ambient air: (1) a sulfur odor; (2) a caustic glue odor; (3) a sour sewer smell; and (4) a stagnant water or liquid odor. He attributed the sour sewer smell to the Northeast Plant. He further described that smell to be like a combination of sewer gas and a sour gaseous smell that comes from human vomit. At certain times of the year, he had to keep the windows of his living quarters closed. The odors have adversely affected him psychologically but not physically. The frequency of the odors diminished during the winter of 1985-1986, but he detected such odors twice in 1986.

 23. Sharon Francis, an area resident for five years, has noticed odors coming from the Northeast Plant, from Franklin Smelting and from the Keystone Rendering Plant, each of which has a distinct smell. She described the smell from the Northeast Plant as "like a diaper pail that has been sitting with a lid on it for about three weeks." It disturbs her children who may be playing outdoors. The odors from the Northeast Plant cause her son to cough a great deal, and embarrass her if friends visit her. She cannot open the windows of her home, or hang her laundry outside without the odor permeating into the cleaned laundry and into the house. This type of odor has been present at least once a week during the last five years.

 24. Mary Elton, another area resident, has lived in the vicinity for thirty-eight years. She has noticed odors coming from the Northeast Plant, Franklin Smelting, Rohm and Haas and Allied Corporation. The odors coming from the Northeast Plant smell to her like "a garbage bucket that's been in the sun all summer without being cleaned." She is usually away from her home and the neighborhood during the daytime. When the odors occur while she is home, she closes the house and remains inside. The odors make her nauseous and unable to breathe normally. The odors have in the past occurred about five times per month, but have been less frequent in 1986. The odors became worse when the renovations and rebuilding of the plant commenced.

 25. Frances Pfeiffer, another resident of the Bridesburg area, lives directly across from the Northeast Plant. She has noticed odors that smell like "human waste" coming from the Northeast Plant. It makes her feel sick. She is unable to entertain company and relatives at her home when the odors are strong. Joseph Pfeiffer, her husband, described the odors as smelling exactly like an "outhouse." The odors cause him to suffer from nausea and headaches.

 26. James Coppola has lived on Richmond Street directly across from the Northeast Plant for fifteen years. The area is zoned residential and a request by him for a zoning change to commercial was turned down ostensibly because he lived in a "fine residential area." In addition to odors from the Northeast Plant, he has noticed odors coming from "Franklin Smelting, Unitank, and occasionally, Keystone Rendering." The odor from the Northeast Plant was described by Mr. Coppola as "Terrible. Like open sewer, gassy odor sometimes. Chemical odor sometimes. A urine type odor sometimes." The odors cause him to feel nauseous and he gets headaches. It prevents outdoor barbecues. If it occurs on a weekend, he and his family usually leave the neighborhood.

 27. Susan Larsen, who has lived a short distance from the Northeast Plant for the last seven years, has noticed odors from the sewage plant that smell like human waste and "a dirty outhouse." She has noticed these odors while traveling along U.S. Route I-95 on occasion. She believes the odors cause her serious headaches. Her children do not want to stay outside because the odor "is so bad."

 28. Robert Kumosinski has lived close to the Northeast Plant for about twelve years. He has detected odors arising from Allied Chemical [Allied Corporation] and Rohm and Haas and from the Northeast Plant. Mr. Kumosinski lives about one mile from the plant, where the odor is nevertheless quite strong when the prevailing winds are blowing from the Northeast Plant toward Mr. Kumosinski's home. The odors can make one feel sick and queasy in the stomach and produce headaches. One particular "gaseous type odor" that comes from the Northeast Plant causes his eleven-year old son to turn white and immediately complain of a headache, thereby frightening Mr. Kumosinski. The odors have been noticed by him while traveling on U.S. Route I-95.

 29. John Belland lives near the Northeast Plant on Richmond Street adjoining U.S. Route I-95. The Northeast Plant is directly behind his house. Although he has noticed odors from Keystone Rendering, Rohm and Haas and Franklin Smelting, the worst odor comes from the Northeast Plant. The odor, when present, requires that he close all the windows of his house, makes him nauseous, tired and listless, and on occasions he leaves the vicinity.

 30. The official records of Air Management Services establish that, at least since 1984 to the date of the trial, there have been frequent and continual violations of the Philadelphia Air Management Code and the Pennsylvania Air Pollution Control Act and the respective regulations in that the Northeast Plant has caused foul-smelling odors to escape into the ambient air and spread onto adjoining properties in the neighborhood. Defendants and ...

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