The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay
Plaintiffs commenced this citizen suit against defendant RRI Energy Northeast Management Company ("RRI"),*fn1 in an effort to secure RRI's compliance with the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251, et seq, and the Pennsylvania Clean Streams Law ("PCSL"), 35 Pa. C.S. §§ 691.1, et seq. Plaintiffs allege that RRI has been discharging illegal levels of at least five different metals into the Conemaugh River from its Conemaugh Generating Station ("CGS") in West Wheatfield Township, Pennsylvania, in violation of its wastewater discharge limits.
It is undisputed that RRI discharges industrial wastewater into the Conemaugh River and, consequently, that it is subject to the National Pollutant Discharge Elimination System ("NPDES"), a federal program established in section 402 of the CWA, 33 U.S.C. § 1342, to regulate the discharge of such pollutants. It is also undisputed that the Pennsylvania Department of Environmental Protection ("PADEP"), administers the NPDES in Pennsylvania, and that on December 27, 2001, the PADEP approved RRI's renewal application for a NPDES permit authorizing RRI's CGS to release wastewater into the Conemaugh River subject to certain effluent standards and limitations and monitoring requirements. See Def. Exh. 9: Permit No. PA 005011 ("2001 Permit"). The 2001 Permit was to become effective on February 1, 2002, and was to expire on December 27, 2006. Id.
On January 31, 2002, RRI filed an appeal with the Pennsylvania Environmental Hearing Board ("PAEHB"), challenging some of the 2001 Permit requirements. On December 28, 2004, RRI and the PADEP entered into a Consent Order and Agreement ("COA"), settling the appeal. See Def. Exh. 10: Notice of Appeal; Def. Exh. 12: COA. Amongst other things, the COA modified the compliance schedule set forth in the 2001 Permit giving RRI until February 1, 2011 to comply with the final water quality based effluent limitations listed in the COA. In addition, under the terms of the COA, the PADEP was required to publish an amendment to the 2001 Permit in the Pennsylvania Bulletin and, after time for review and comment, issue an amended permit incorporating the terms and conditions set forth in the COA. The proposed amendment was, in fact, published in the Pennsylvania Bulletin on December 18, 2004, and on January 31, 2005, an amended permit was issued.*fn2 See Def. Exh. 14: 34 PA. BULL. 51 (Dec. 18, 2004). Since that time, according to RRI, it has been performing studies and collecting data in order to assess potential treatment technologies and support the development of proposed revised effluent limitations. See Def. Brief, pp. 9-16.
Nevertheless, on February 6, 2007, plaintiffs submitted a notice of intent to sue to RRI, the PADEP and the EPA in accordance with section 505 of the CWA, 33 U.S.C. § 1365, and commenced the instant action on April 10, 2007. In the interim, on April 5, 2007, the PADEP filed a civil action against RRI under the PCSL in the Court of Common Pleas of Indiana County, Pennsylvania, alleging that between February of 2002 and October of 2006, RRI was discharging wastewater into the Conemaugh River contrary to the CWA and/or the terms and conditions of the 2001 Permit. Amongst other things, the PADEP asked the court for injunctive relief and to assess civil penalties against RRI. See Pls.' Exh. 13a: State Court Complaint. On May 3, 2007, pursuant to a joint motion filed by the parties, an order staying all proceedings in this case was entered to allow the parties to explore settlement; it appears undisputed that a similar order was also entered in the state court action. See Pls.' Exh.14. Although settlement discussions ultimately proved unsuccessful, the PADEP nevertheless withdrew the state action on October 1, 2008. See Pls.' Exh. 15: Praecipe for Discontinuance. The stay of proceedings entered by this Court was lifted on November 25, 2008. See Dkt. 27.
RRI has now filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) arguing that the Court is without jurisdiction as plaintiff's citizen suit is barred under section 309(g)(6) of the CWA and that plaintiffs nevertheless lack standing.
"Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter, or if the plaintiff lacks standing to bring his claim." Samsung Electronics Co. v. ON Semiconductor Corp., 541 F. Supp. 2d 645, 648 (D. Del. 2008). Where the motion presents a facial challenge to the court's jurisdiction, or one based purely on the allegations in the complaint, the court must accept those allegations as true and may consider only the complaint and any documents upon which it is based. Petruska v. Gannon University, 462 F.3d 294, 302 n.3 (3d Cir. 2006). Where, however, subject matter jurisdiction is challenged in fact, i.e., where the challenge is based on the sufficiency of jurisdictional fact, the court is not required to attach any presumptive truthfulness to the allegations in the complaint but may consider matters outside the pleadings to satisfy itself that it has jurisdiction. Id. See Carpet Group International v. Oriental Rug Importers Association, Inc., 227 F.3d 62, 69 (3d Cir. 2000). Under these circumstances, the plaintiff bears the burden of establishing that subject matter jurisdiction exists. Id. See Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007) ("On a motion to dismiss for lack of standing, the plaintiff bears the burden of establishing the elements of standing, and each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation") (internal quotations and citations omitted). See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Here, resolution of RRI's motion turns on the factual determination of whether the COA entered into between the parties constitutes the type of action that precludes a citizen suit under the CWA and whether plaintiffs have suffered an injury that is fairly traceable to RRI's conduct. RRI's motion, therefore, presents a factual challenge to the Court's jurisdiction. Accordingly, the Court need not presume the truth of the allegations in the complaint and may consider matters outside the pleadings. Indeed, the parties have already engaged in discovery on the issue of jurisdiction in anticipation of RRI's motion and have submitted numerous exhibits to support their respective positions. See Dkts. 27, 35, 41.
A. Preclusion under the CWA
Under section 505(a)(1) of the CWA, citizen suits are authorized against defendants alleged to be in violation of the CWA, "except as provided in... section 1319(g)(6) of this title."*fn3 33 U.S.C. § 1365(a). Section 1319(g), which falls under the "Enforcement" section of the statute and is entitled "Administrative penalties," provides the EPA with the authority to assess administrative penalties against polluters without bringing suit against them. Subsection 1319(g)(6)(A) sets forth certain limitations on that authority and other potential actions providing that: any violation--
(i) with respect to which the Administrator or the Secretary has commenced and is diligently prosecuting an action under this subsection,
(ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or
(iii) for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be, shall not be the subject of a civil penalty action under subsection (d) of this section or section 1321(b) of this title or section 1365 of this title.
33 U.S.C. § 1319(g)(6)(A). Thus, a citizen suit under section 1365 is properly barred if, as here, civil penalties are sought and one of these three exceptions apply.
RRI contends that plaintiffs' suit is barred under subsection (ii). Specifically, RRI argues that the COA it entered into with the PADEP constitutes the "commencement" of an "action" and that the PADEP has been "diligently prosecuting" that action as evidenced by its ongoing activities under the COA. As well, RRI contends that the PADEP's statutory and regulatory scheme is comparable to its federal counterpart thereby satisfying all the requirements of subsection 1319(g)(6)(A)(ii).
Plaintiffs, however, argue that section 1319(g)(6)(A) is wholly inapplicable and that the Court need not assess whether the state has commenced or is diligently prosecuting an action comparable to section 1319(g)(6). Plaintiffs contend that the only type of action that has preclusive effect under section 1319(g)(6) is an administrative penalty action and that, because the COA is merely an administrative compliance order which imposes no ...