The opinion of the court was delivered by: Hay, Chief Magistrate Judge
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.
On March 13, 2009, RRI filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) arguing that the Court is without jurisdiction as plaintiffs' citizen suit is barred under section 309(g)(6) of the CWA and that plaintiffs lack standing [ECF No. 34]. In a Memorandum Opinion issued on December 18, 2009 [ECF No. 51], the Court rejected RRI's argument that plaintiffs' suit was barred under the CWA but nevertheless granted RRI's motion finding that plaintiffs are without standing to pursue this action. Plaintiffs subsequently filed a motion for reconsideration of that finding arguing that the Court misapplied the standard applicable to 12(b)(1) motions and that, had the proper standard been utilized, the Court would have concluded that plaintiffs had standing and that the Court had jurisdiction over the matter. The Court was persuaded by plaintiffs' argument and vacated its December 22, 2010 Memorandum Opinion [ECF No. 51]. The instant opinion stands in its place and, thus, all of the issues raised by RRI in its motion to dismiss have been revisited.
"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). A 12(b)(1) motion may present either a facial or a factual challenge to the court's jurisdiction. Petruska v. Gannon University, 462 F.3d 294, 302 n.3 (3d Cir. 2006). Because a facial challenge is 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. Id. 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 and 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).
The Court of Appeals for the Third Circuit has further explained that under the latter circumstances,
If the defendant raises no challenge to the facts alleged in the pleadings, the court may rule on the motion by accepting the allegations as true. . . . If the defendant contests any allegations in the pleadings, by presenting evidence, the court must permit the plaintiff to respond with evidence supporting jurisdiction. . . . The court may then determine jurisdiction by weighing the evidence presented by the parties. . . .
Gould Electronics Inc. v. United States, 220 F.3d 169, 177 (3d Cir. 2000) (emphasis added) (internal citations omitted). Thus, "the allegations in the complaint are not controlling . . . and only uncontroverted factual allegations are accepted as true for purposes of the motion . . . . All other facts underlying the controverted jurisdictional allegations are in dispute and are subject to fact finding by the district court." Roush v. Horner, 2008 WL 189556 at *5 (W.D. Pa. Jan. 18, 2008), citing Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993). See First Quality Baby Products, LLC. v. Kimberly-Clark Worldwide, Inc., 2009 WL 1675088 at * 2 (M.D. Pa. June 15, 2009).
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. As such, only the factual allegations that are contested by defendant and supported by contrary evidence are at issue and the uncontroverted factual allegations in the complaint are accepted as true.
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 penalties, section 1319(g)(6) is not triggered. Looking at the CWA's enforcement scheme as a whole, the Court agrees.
First, by its plain language, section 1319(g)(6)(A)(ii), precludes citizen suits when the state "has commenced and is diligently prosecuting an action under a State law comparable to this subsection." "This subsection" is that which provides for the assessment of administrative penalties. It therefore follows that the action being pursued by the state must be one in which administrative penalties are sought in order for section 1319(g)(6)(A)(ii) to apply.
Indeed, as noted by the United States District Court for the District of Colorado, prior to the 1987 amendments to the CWA, the EPA had two enforcement options: it could issue a compliance order under section 1319(a), or bring a civil or criminal action in court under section 1319(b)-(d). Old Timer, Inc. v. Blackhawk-Central City Sanitation District, 51 F. Supp. 2d 1109, 1114 (D. Colo. 1999) (Old Timer, Inc."). Citizen suits were precluded only when the EPA or a state had already commenced and was diligently prosecuting a civil or criminal action "in a court;" they were not precluded where the EPA sought to enforce the CWA by issuing a compliance order. Id. See 33 U.S.C. § 1365(b).
The amendments to the CWA, enacted in 1987, added subsection 1319(g) which, as previously discussed, gives the EPA the authority to assess administrative penalties without bringing a court action. As noted by the court in Old Timer, Inc., there is again no provision that precludes a citizen suit when the EPA issues a compliance order under section 1319(a). Old Timer, Inc., 51 F. Supp. 2d at 1114. Moreover, the court found that "by specifying that state action, to be preclusive, must have been brought under a law comparable to subsection (g), without mentioning subsection (a) compliance actions, Congress expressed its intent to preclude citizen actions only when the state is actively seeking an administrative penalty." Id. Thus, the court concluded that citizen suits are only precluded under the amendments "when the EPA or a state has commenced an action under the administrative penalty subsection or a comparable state statute, or when administrative penalties have ...