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June 7, 2002


The opinion of the court was delivered by: James F. Mcclure, Jr., United States District Court Judge.

    M E M O R A N D U M


This case involves numerous federal and state challenges to the validity of a municipal ordinance. Plaintiff Synagro-WWT, Inc. (Synagro) is a company that applies sewage sludge to land sites that were formerly used for surface mining. Defendant Rush Township, Pennsylvania has enacted an ordinance (the Ordinance) that requires companies that apply sewage sludge to comply with certain procedural requirements if they wish to apply sewage sludge in Rush Township. The Ordinance also places a partial ban on the transportation of sewage sludge within the township.
Synagro filed a complaint seeking a declaratory judgment that the Ordinance is invalid, an injunction against the enforcement of the ordinance, and damages. The complaint raises the following claims: (1) the Ordinance is preempted by the federal Surface Mining Control and Reclamation Act (Count I); (2) the Ordinance is preempted by the Pennsylvania Surface Mining Conservation and Reclamation Act (Count II); (3) the Ordinance violates the Due Process Clause of the United States Constitution (Count III); (4) the Ordinance violates the Commerce Clause of the United States Constitution (Count IV); (5) the Ordinance violates the Equal Protection Clause of the United States Constitution (Count V); (6) the Ordinance violates the Uniformity Clause of the Pennsylvania Constitution (Count VI); (7) the Ordinance is preempted by three other Pennsylvania statutes: the Nutrient Management Act, the Solid Waste Management Act, and the Sewage Facilities Act (Count VII); (8) the Ordinance violates the Contract Clauses of the United States and Pennsylvania Constitutions (Count VIII); and (9) the enactment of the Ordinance was an ultra vires action (Count IX). We have both federal question and diversity jurisdiction. See 28 U.S.C. § 1331, 1332.
Before the court is a motion filed by Rush Township. Rush Township requests relief in three forms. First, it seeks dismissal under Federal Rule of Civil Procedure 12(b)(6) of every count of the complaint. Second, it asks the court to abstain from deciding the case, as the case presents unsettled issues of state law that may moot the need for federal constitutional analysis. Third, it requests the court to compel Synagro under Federal Rule of Civil Procedure 12(e) to provide a more definite statement.
We will not abstain from the case. Rush Township's motion to dismiss will be granted in part and denied in part; we will dismiss all counts of the complaint except Counts IV, VII, and IX. Rush Township's motion for more definite statement will be denied.


A motion to dismiss under Rule 12(b)(6) admits the well-pleaded allegations of the complaint but denies their legal sufficiency. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740 (1976). In reviewing a motion to dismiss under 12(b)(6), the court must accept as true all factual allegations of the complaint and draw all reasonable inferences in the light most favorable to the plaintiff. Board of Trustees of Bricklayers and Allied Craftsmen Local 6 of New Jersey v. Wettlin Assoc., Inc., 237 F.3d 270, 272 (3d Cir. 2001) (citation omitted). But "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." General Motors Corp. v. New A.C. Chevrolet, 263 F.3d 296, 333 (3d Cir. 2001) (citation and internal quotation marks omitted).
"A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations." Ramadan v. Chase Manhattan Corp., 229 F.3d 194, 195-96 (3d Cir. 2000) (citing Alexander v. Whitman, 114 F.3d 1392, 1398 (3d Cir. 1997)). "The issue [under Rule 12(b)(6)] is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000) (citations and internal quotation marks omitted).
Synagro challenges the validity of a municipal ordinance. Virtually each of Synagro's allegations — i.e. preemption, equal protection, substantive due process, etc. — involve almost exclusively questions of law and present little or no need for factfinding. Synagro asserts that regardless of the merit of its legal arguments, its claims should be sustained at this stage as long as they properly allege the legal theory that forms the basis for the claims. For example, it argues that its federal preemption claim should be sustained because it alleges that the Ordinance is preempted. This contention suggests that Synagro misapprehends the nature of a motion to dismiss.
"Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke v. Williams, 490 U.S. 319, 326 (1989). "This procedure, operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and factfinding." Id. at 326-27. "[I]f, as a matter of law it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327 (citations and internal quotation marks omitted). Keeping this in mind, we will dismiss any of Synagro's claims that lack merit, but we will sustain the ones that may succeed.
We must stress that the instant motion was filed by Rush Township and seeks only dismissal of the complaint. While Synagro has filed a motion for summary judgment and has requested us to rule immediately on that motion, we believe that the most logical course of action is to rule first on Rush Township's 12(b)(6) motion. Thus, we do not have before us at this time a request to enter judgment in favor of Synagro. Accordingly, even though we have the ultimate responsibility to decide the issues before us, the only two possible results with respect to each claim are either a dismissal of the claim or a sustaining of the claim. In the event that we sustain any of Synagro's claims, we express no opinion at to whether Synagro will ultimately succeed. Other courts in similar situations have proceeded similarly. See, e.g., Qwest Communications Corp. v. The City of Berkeley, 146 F. Supp.2d 1081, 1090 (N.D. Ca. 2001) (sustaining but not adjudicating a claim for federal preemption).
Synagro provides professional management of treated municipal sewage sludge for municipal treatment plants throughout the United States. Included in Synagro's services is the application of sewage sludge for the reclamation of sites formerly used for surface mining. Synagro refers to the municipal sewage sludge as "biosolids"; we will use the terms interchangeably.
After Synagro began biosolids application in one of its land sites, Rush Township enacted the Land Application of Sewage Sludge Ordinance. The Ordinance's stated purpose is "[t]o protect the health, safety and general welfare of all township citizens and other persons by seeking to prevent exposure to any toxic or other harmful material contained in sewage sludge. . . ." (Ordinance, Attached to Complaint, Rec. Doc. No. 1, at § 1.1(A).) The Ordinance applies to "all current existing permits issued or authorized by PA DEP for the land application of sewage sludge in Rush Township." (Id. at § 10.)
The Ordinance claims to be consistent with federal and state regulation of sewage sludge, but it sets forth additional preliminary procedural requirements of any entity that wishes to apply sewage sludge in Rush Township. Before sewage sludge may be applied in Rush Township, two documents must be obtained. First, the wastewater treatment facility that generates the sewage sludge must obtain a "Site Registration," which is a document that confirms that the proposed site meets all federal, state, and local regulations pertaining to the application of sewage sludge. Second, the entity applying the sewage sludge must obtain a "Land Application Registration," which is an authorization by Rush Township to apply sewage sludge on agricultural lands within the township.
The Ordinance mandates a considerable number of procedural requirements for obtaining a Site Registration and a Land Application Registration. An applicant must submit all DEP application material to Rush Township for review and consideration. In addition, the applicant must subject the featured land to many tests, including soil analysis and groundwater analysis. After completing the tests, the applicant must provide Rush Township with reports based on these tests. The applicant also must submit documents such as a map of the surface waters on the proposed site and a memorialization of a county-approved plan to manage surface water and control erosion on the site.
In addition to prescribing requirements for obtaining Site Registration and a Land Application Registration, the Ordinance regulates the transportation of sewage sludge. For example, the Ordinance requires that sewage sludge may be transported within Rush Township only from the hours of 6:00 AM to dusk, Monday through Friday.
The provisions of the ordinance are enforced by the Rush Township Board of Supervisors. An amendment to the ordinance, enacted on November 4, 1999, requires a tipping fee of $40.00 per ton of sewage sludge applied upon any land in Rush Township.

Synagro claims that the requirements imposed by the Ordinance have, among other things, forced it to find land sites in other Townships; it alleges in excess of $2,560,000 in damages.


Before addressing the substance of the issues, we must decide whether to abstain from adjudicating the case. The Supreme Court has recognized several types of abstention. Rush Township requests that the court abstain under the doctrines of Burford abstention, see Burford v. Sun Oil Co., 319 U.S. 315 (1943); Pullman abstention, see Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941), or both.
Burford abstention is clearly inappropriate; it applies only when there exists a "state order[] against an individual party that a federal-court plaintiff seeks to enjoin." Keeley v. Loomis Fargo & Co., 183 F.3d 257, 273 n. 13 (3d Cir. 1999). Where the law at issue is a general legislative act and not "a specific administrative order aimed at one party," id., Burford abstention is inapplicable.
Thus, we are left with Pullman abstention. A federal court may abstain under Pullman when faced with a federal constitutional issue that may be mooted by a state-court determination of state law. Rush Township argues that because this case presents issues of state law of which a certain resolution by a state court may moot certain avenues of federal constitutional analysis, we should abstain from deciding the case.
Pullman abstention applies "`in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.'" Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127, 149 (3d Cir. 2000) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976)). "[A]bstention under Pullman is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem." Id. (citing Bellotti v. Baird, 428 U.S. 132, 147 (1976)) (internal quotation marks omitted). Where appropriate, federal courts invoke Pullman abstention to avoid needless friction with state policies. See Presbytery of New Jersey of the Orthodox Presbyterian Church v. Whitman, 99 F.3d 101, 106 (3d Cir. 1996) (citations omitted).
Before a federal court may abstain under Pullman, three "exceptional" circumstances must be present. "First, there must be `uncertain issues of state law underlying the federal constitutional claims.'" Farmer, 220 F.3d at 149 (quoting Whitman, 99 F.3d at 106). "Second, the state law issues must be amenable to a state court interpretation which could `obviate the need to adjudicate or substantially narrow the scope of the federal constitutional claim.'" Id. at 149-150 (quoting Whitman, 99 F.3d at 106). "Third, it must be that `an erroneous construction of state law by the federal court would disrupt important state policies.'" Id. at 150 (quoting Whitman, 99 F.3d at 106).
Even if all three circumstances exist, the federal court retains the discretion whether or not to abstain. The court must determine "whether abstention is appropriate by weighing such factors as the availability of an adequate state remedy, the length of time the litigation has been pending, and the impact of delay on the litigants." Id. (citing Artway v. Attorney General of New Jersey, 81 F.3d 1235, 1270 (3d Cir. 1996)).
Rush Township points out that the instant case contains many state-law issues, such as preemption of the Ordinance by state statutes, analysis under the Pennsylvania Constitution, and a question of whether Rush Township had the state-given authority to enact the Ordinance. It contends if a state court decides any of these issues in Synagro's favor, then the Ordinance would be invalid and this court would not be required to analyze it under the federal constitution. It argues that, accordingly, we should abstain pending a state-court determination of the state-law issues.
While Rush Township is correct that a state-court adjudication of certain issues may moot the federal constitutional issues, it has not persuaded us that we should abstain. We note at the outset that "the party arguing in favor of abstention bears a heavy burden of persuasion. . . ." Capital Bonding Corp. v. New Jersey Supreme Court, 127 F. Supp.2d 582, 591 (D.N.J. 2001) (citing Chiropractic America v. Lavecchia, 180 F.3d 99, 103 (3d Cir. 1999). Further, we emphasize that we have diversity jurisdiction, and "Pullman abstention is `virtually prohibited in diversity cases where the only difficulty is the unsettled posture of state law.'" Instructional Systems, Inc. v. Computer Curriculum Corp., 35 F.3d 813, 819 (3d Cir. 1994) (quoting Urbano v. Board of Managers of N.J. State Prison, 415 F.2d 247, 253 (3d Cir. 1969).
Rush Township fails to meet its burden of persuasion. After vigorously arguing that the Ordinance is not preempted by any state law and is valid under the Pennsylvania Constitution, Rush Township cursorily contends that because a state court might rule in Synagro's favor on one or more issues of state law, this court should abstain and turn the matter over to a state court. This conclusory argument is insufficient to persuade a federal court to abstain. Because Rush Township has failed to articulate any unsettled areas of state law (other than in the most general terms), we do not have the authority to abstain. As the Third Circuit has put it, "[if] no unsettled question of state law has been identified, abstention under the Pullman doctrine is not appropriate." Schall v. Joyce, 885 F.2d 101, 113 (3d Cir. 1989) (citations omitted). Even assuming that Synagro's nonspecific assertions could pass for sufficient identifications of unsettled state law, we reject the abstention request because Rush Township fails to argue that an erroneous construction of state law by this court would disrupt important state policies. Without any semblance of an argument on this point, Rush Township cannot meet its burden, and we lack the authority to abstain. Our inability to abstain is magnified by the fact that this is a diversity case.
Even if we do have the authority to abstain from deciding the case, we will exercise our discretion and choose not to abstain. This case has been pending since September of 2000, and refraining from deciding the case may be unduly harmful to Synagro, which alleges that the Ordinance is making it prohibitively expensive to apply sewage sludge to mining sites. Any delay due to abstention potentially could be extremely harmful to Synagro.

Thus, we will analyze each claim before us.

Count I: Preemption by the Surface Mining Control and Reclamation Act

Synagro's position is that the Ordinance is preempted by the federal Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. § 1201-1328.

Federal law may preempt state law in one of three ways: (1) express preemption, which arises when there is an explicit federal statutory command that state law be displaced; (2) field preemption, which results when federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the states to supplement it; and (3) conflict preemption, which arises when a state law makes it impossible to comply with both state and federal law or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The St. Thomas-St. John Hotel & Tourism Assoc., Inc, v. Government of the U.S. Virgin Islands, 218 F.3d 232, 238 (3d Cir. 2000). "By referring to these three categories, we should not be taken to mean that they are rigidly distinct. Indeed, field pre-emption may be understood as a species of conflict pre-emption: A state law that falls within a pre-empted field conflicts with Congress' intent (either express or plainly implied) to exclude state regulation." English v. General Electric Co., 496 U.S. 72, 79 (1990). "[F]or the purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws." Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985).
In 1977, Congress enacted SMCRA. One of SMCRA's stated purposes is "to establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. § 1202(a). Among other things, the statute seeks to "assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface coal mining operations." 30 U.S.C. § 1202(e).
SMCRA established the Office of Surface Mining Reclamation and Enforcement (OSM) as a subdivision of the Department of the Interior. 30 U.S.C. § 1211(a). The Secretary of the Interior executes programs for controlling surface coal mining. 30 U.S.C. § 1211(c).
SMCRA's regulatory and enforcement provisions are set forth in Subchapter V of the statute. 30 U.S.C. § 1251-1279. Any person or company seeking to engage in surface coal mining operations must first secure a permit. 30 U.S.C. § 1256. The permit must require the surface coal mining operation to satisfy certain environmental protection performance standards. 30 U.S.C. § 1265-66. Permit holders who violate any permit condition or ...

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