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PennEnvironment v. PPG Indus., Inc.

United States District Court, W.D. Pennsylvania

August 8, 2013

PENNENVIRONMENT and SIERRA CLUB, Plaintiffs,
v.
PPG INDUSTRIES, INC. and BOROUGH OF FORD CITY, Defendants

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For PENNENVIRONMENT, SIERRA CLUB, Plaintiffs: Bruce J. Terris, Carolyn Smith Pravlik, Patrick A. Sheldon, LEAD ATTORNEYS, PRO HAC VICE, Terris, Pravlik & Millian, LLP, Washington, DC; Thomas J. Farrell, LEAD ATTORNEY, Emily McNally, Farrell & Reisinger, LLC, Pittsburgh, PA.

For PPG INDUSTRIES, INC, Defendant: Jessica L. Sharrow, Paul D. Steinman, Richard S. Wiedman, Eckert, Seamans, Cherin & Mellott, Pittsburgh, PA.

For BOROUGH OF FORD CITY, Defendant: Frank A. Wolfe, LEAD ATTORNEY, Attorney at Law, Ford City, PA.

OPINION

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MEMORANDUM OPINION AND ORDER

ROBERT C. MITCHELL, United States Magistrate Judge.

Plaintiffs, PennEnvironment and Sierra Club, bring this citizens suit pursuant to the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a)(1) (Clean Water Act or CWA), section 7002(a)(1)(B) of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B) (RCRA), and section 601(c) of the Pennsylvania Clean Streams Law, 35 P.S. § 691.601(c) (CSL), against Defendants, PPG Industries, Inc. (PPG) and the Borough of Ford City (Ford City), to remedy the alleged imminent and substantial endangerment to health and the environment presented by contamination of a site in Armstrong County, Pennsylvania used and operated by PPG (the " Site" ), contamination of surface waters and sediments in the Allegheny River and Glade Run in the vicinity of the Site, and contamination of groundwater associated with the Site.

Presently pending before the Court are two motions to dismiss, one filed by PPG and the other by Ford City. For the reasons that follow, the motions will be denied.

Facts

Plaintiffs' complaints allege that from 1899 to 1972, PPG owned land in Cadogan and North Buffalo Townships that was used by PPG to dispose of waste from its glass manufacturing plant in Ford City. (CWA Compl. ¶ 14; RCRA Compl. ¶ 16.)[1] From 1950 to 1970, PPG disposed of waste slurry in areas of that land that had formerly been used as a sandstone quarry. PPG created three slurry lagoons within the quarry, which occupy an area of approximately 77 acres. (CWA Compl. ¶ ¶ 14-15; RCRA Compl. ¶ ¶ 16-17.) Those slurry lagoons are bordered by the Allegheny River to the south, Route 128 to the north, Glade Run (a tributary to the Allegheny River) to the west, and a feature that PPG terms the " Drainage Ditch" to the east. A solid waste disposal area used by PPG from the 1920s to the 1970s, a plumbing fixture landfill used and occupied by Eljer, Inc., and four baseball fields are east of the Drainage Ditch. (CWA Compl. ¶ 16; RCRA Compl. ¶ 18.) Plaintiffs have alleged that the slurry lagoons, solid waste disposal area, plumbing fixture landfill and

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baseball fields, together measuring approximately 150 acres, constitute what they call the " PPG Waste Site." (CWA Compl. ¶ 17; RCRA Compl. ¶ 19.) PPG calls it the " Ford City Site" and contends that it does not include the plumbing fixture landfill or the ballfields. The Court will refer to it as " the Site." The issue of whether the plumbing fixture landfill and the ballfields are included is discussed below.

On March 8, 1971, PPG and the Pennsylvania Department of Environmental Resources -- now known as the Pennsylvania Department of Environmental Protection (" PADEP" ) -- entered into an Agreement and Stipulation concerning discharges of industrial waste from the Site into the Allegheny River. (CWA Compl. ¶ 18; RCRA Compl. ¶ 20; PPG Ex. 7.) The Agreement and Stipulation required PPG to submit a remediation plan that would either eliminate the continuing discharges or treat the discharges in perpetuity. (CWA Compl. ¶ 19; RCRA Compl. ¶ 21.) Plaintiffs note that it has now been more than 40 years since PPG signed the Agreement and Stipulation agreeing to stop or treat the discharges.

On August 1, 1972, PPG submitted a remediation plan that proposed continuing untreated discharge into the Allegheny River. (CWA Compl. ¶ 20; RCRA Compl. ¶ 22.) On October 16, 1972, PPG sold the Site to Ford City for one dollar. (CWA Compl. ¶ 21; RCRA Compl. ¶ 23; PPG Ex. 5.) On or about March 16, 1973, PADEP informed PPG that its plan was unacceptable and requested that PPG revise the plan to provide for treatment of the discharge. On or about May 16, 1973, PPG withdrew its plan. (CWA Compl. ¶ 22; RCRA Compl. ¶ 24; PPG Ex. 8.)

Plaintiffs allege that, since at least April 16, 1973, PPG has been required to obtain a National Pollutant Discharge Elimination System (" NPDES" ) permit for the Site and has failed to do so. (CWA Compl. ¶ 23.) PADEP informed PPG at least as early as February 21, 1992, that PPG was required to obtain a permit under the CSL, but PPG has failed to do so. (CWA Compl. ¶ 24; PPG Ex. 11.) PPG notes that, in response to the notice, it prepared a Remedial Investigation Work Plan which the Department approved in November 1992. (PPG Ex. 14.)

PPG indicates that, based on the previous studies and work that had been done on the Site to mitigate risk to human health and the environment, it entered the Site into Pennsylvania's Land Recycling Program (commonly known as " Act 2" ) in 2001. Pennsylvania's Act 2 program allows owners and operators to " voluntarily" (i.e., without the issuance of a PADEP Order) remediate properties under the supervision of PADEP. The study and remediation of a property under Act 2 can take place either before or after an owner/operator has formally submitted the property to the Act 2 process. Nonetheless, PADEP must approve all work plans and remediation plans and has the ability to require changes and revisions in order to assure compliance with Act 2 remediation standards. PPG submitted the Site to the Act 2 process by filing a Notice of Intent to Remediate (" NIR" ) in 2001, pursuant to which PPG committed to ensure that the Site, including the leachate from the slurry lagoon area at issue in Plaintiffs' Complaints, met the Act 2 statutory site-specific remediation standards. (PPG Exs. 17, 18.) As part of the Act 2 process, PPG submitted a Remedial Investigation Report for the slurry lagoon area on July 31, 2001 and an Addendum on October 15, 2001. (PPG Exs. 19, 20.) PADEP approved these reports on October 19, 2001. (PPG Ex. 21.)

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PPG states that, in order to construct the selected remedy, in 2001, it developed and submitted to PADEP an NPDES Permit Application for Discharges Associated with Construction Activities that contained an Erosion and Sedimentation (E& S) Control Plan to address the leachate seeps during the construction phase. (PPG Ex. 22.) However, PADEP did not approve this E& S Plan, but instead issued PPG an interim discharge permit on November 19, 2002 that required the collection and treatment of seeps resulting from the leachate from the slurry lagoon area during construction. (PPG Ex. 23.)

On March 9, 2009, PADEP issued an Administrative Order (" 2009 Administrative Order" ), in which it stated that " [t]he Department believes that the discharges coming from the site and entering into the Allegheny River and Glade Run pose a significant threat to public health and the environment." (CWA Compl. ¶ 26; RCRA Compl. ¶ 27; PPG Ex. 1 at PADEP 1.) The site referred to in the 2009 Administrative Order includes at least the slurry lagoons and solid waste disposal area. The 2009 Administrative Order states that " [p]recipitation which infiltrates the Slurry Lagoons and the Landfill at the Site becomes contaminated with hazardous substances. " (CWA Compl. ¶ 27; RCRA Compl. ¶ 28; PPG Ex. 2 ¶ 14.) In addition, the 2009 Administrative Order states that " [e]nvironmental assessments have found that the Slurry Lagoons at the Site are contaminated with various hazardous substances [including] antimony, arsenic, and lead." (PPG Ex. 2 ¶ 13.)

The Order stated that discharges seep out " at various locations at the Site and then flow or are conveyed into the waters of the Commonwealth," including the Allegheny River and Glade Run. Leachate discharged into Glade Run, in turn, is discharged into the Allegheny River. Leachate seeps through fissures on the cliff face of the south side of the Site and is discharged to the Allegheny River through culverts under the railroad tracks that are at the base of the cliff. Leachate also enters the Allegheny River through " Outfall 001," which was constructed by PPG. (CWA Compl. ¶ 28; RCRA Compl. ¶ 29; PPG Ex. 2 ¶ 15.) The Order also stated that the discharges, " which are pollutional and have a very high pH and contain metals and other toxic chemicals, continue unabated as of the date of this Administrative Order." (CWA Compl. ¶ 30; RCRA Compl. ¶ 31; PPG Ex. 2 ¶ 12.)

The Order required PPG to conduct " interim monitoring and reporting of the quality and quantity" of certain seeps, to " sample the receiving streams above and below the points of discharge," and to monitor weekly both the seeps and streams for certain parameters. (PPG Ex. 2 at 4-5 ¶ A.) The Order required PPG to submit an interim abatement plan within 30 days and to submit a treatment plan within 90 days. (PPG Ex. 2 at 5 ¶ ¶ C, D.) Subparagraph (ii) of paragraph D required PPG to identify in its Treatment Plan, inter alia, " the necessary NPDES permit(s) for the authorization of the discharges associated with the collection and treatment system" and to " provide a schedule for applying for the necessary permits." (CWA Compl. ¶ ¶ 31-33.)

On July 2, 2009, PADEP approved PPG's May 26, 2009 Addendum to Interim Abatement Plan (the " July 2 Addendum" ), such that PPG was directed to:

collect wastewater from the Site and treat that wastewater in a treatment system that will be designed to address any accumulated sludge that may result from treatment and neutralization. PPG shall install, operate, and maintain the collection and treatment system in accordance with the requirements of Attachment

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A. In addition, PPG shall design the collection system using pipes, therefore, avoiding the collection and treatment of uncontaminated storm water runoff. Finally, PPG shall submit a final design before construction commences. This will allow the Department to review the final plan.

(CWA Compl. ¶ 34; Pls.' Br. (ECF No. 43) Ex. 1.) Attachment A to the July 2 Addendum required that " PPG shall monitor the discharges from any temporary system" and comply with certain effluent limitations in accordance with the table listed therein. (ECF No. 43 Ex. 1 Attach. A.) Plaintiffs allege that, based on the monthly Effluent Monitoring Data reports submitted by PPG to PADEP for the period February 2010 through December 2011, they have identified 162 discharge violations and 33 reporting violations. (CWA Compl. ¶ 31 & Exs. 2, 3.)

Paragraph 3 of Attachment A of the July 2 Addendum states that " [n]o untreated or ineffectively treated wastewaters shall be discharged into the waters of the Commonwealth...." Under the CSL, " waters of the Commonwealth" includes " any and all rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds, springs and all other bodies or channels of conveyance of surface and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth." 35 P.S. § 691.1. (CWA Compl. ¶ 34.)

In addition, Plaintiffs allege that the discharge from Outfall 001 is being treated only for pH and not any other pollutant. Thus, they allege that PPG is discharging untreated or ineffectively treated wastewaters into the Allegheny River. (CWA Compl. ¶ 35.)

In June 2009, PPG submitted a Treatment Plan (PPG Ex. 28), which PADEP approved on November 9, 2011. (CWA Compl. ¶ 36; PPG Ex. 30). PPG notes that the Treatment Plan provided for the submission to PADEP of a Treatment Plan Report evaluating potential remedial strategies for the collection and treatment of seeps discharging from the Site and implementation of the selected remedy, once approved, on a schedule. PPG submitted this report in December 2012. (PPG Ex. 31.) PPG states that the report " is currently under review by PADEP." (PPG Br. (ECF No. 25) at 11.)

Plaintiffs allege that PPG's Treatment Plan fails to provide a schedule for the application for NPDES permits and, based on the monthly progress reports submitted by PPG beginning on April 1, 2009, through at least January 5, 2012, PPG took no steps to apply for such permits. (CWA Compl. ¶ 33.)

Procedural History

On January 13, 2012, Plaintiffs gave notice of their intent to file suit to the Administrator of the United States Environmental Protection Agency (EPA), the PADEP and Defendants as required by the CWA, CSL and RCRA. 33 U.S.C. § 1365(b)(1)(A); 35 P.S. § 691.601(e); 42 U.S.C. § 6972(b)(2)(A). (CWA Compl. ¶ 4 & Ex. 1; RCRA Compl. ¶ 4 & Ex. 1.) On March 20, 2012, Plaintiffs filed a complaint against Defendants under the CWA and the CSL (the " CWA Complaint" ). The case was docketed at Civ. A. No. 12-342. Count I alleges that that PPG has unlawfully discharged pollutants into navigable waters without an NPDES permit and continues to do so in violation of Sections 301(a) and 402 of the CWA, 33 U.S.C. § § 1311(a), 1342. Count II alleges that PPG has violated and continues to violate sections 301(a) and 402(p)(2)(B), 33 U.S.C. § § 1311(a), 1342(p)(2)(B), by discharging storm water associated with industrial activity without a permit authorizing

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such discharge. Count III alleges that PPG has violated and continues to violate Sections 301 and 307 of the CSL, 35 P.S. § § 691.301, 691.307, by discharging industrial waste into the Allegheny River, Glade Run, and groundwater associated with the Site without authorization or a permit obtained from PADEP, which constitutes a nuisance under Section 307(c). Count IV alleges that PPG has violated and continues to violate Section 401 of the CSL, 35 P.S. § 691.401, by discharging pollutants and discharging waste containing high levels of pH, into the Allegheny River, Glade Run, and groundwater without a permit issued by PADEP authorizing such discharges. Count V alleges that PPG has violated the CWA in that the Treatment Plan it submitted in June 2009 fails to provide a schedule for the application for NPDES permits and, based on the monthly progress reports submitted by PPG beginning on April 1, 2009, through at least January 5, 2012, PPG took no steps to apply for such permits and Plaintiffs allege, on information and belief, that PPG has failed to provide a schedule for the application of NPDES permits and has taken no steps to apply for such permits. Count VI alleges that PPG's acts as alleged in Count V also violate section 611 of the CSL, 35 P.S. § 691.611. Count VII alleges that PPG has discharged, and continues to discharge, untreated and ineffectively treated wastewater, in violation of the July 2 Addendum, and Count VIII alleges that these acts also violate section 611 of the CSL. Count IX alleges that PPG has violated the CWA by committing 162 discharge violations between February 2010 and December 2011, in violation of the 2009 Administrative Order, and Count X alleges that these acts also violate section 611 of the CSL. Count XI alleges that PPG has violated the CWA by committing 33 reporting violations between February 2010 and December 2011, in violation of the 2009 Administrative Order, and Count XII alleges that these acts also violate section 611of the CSL.

On April 20, 2012, Plaintiffs filed another complaint against Defendants under the RCRA (the " RCRA Complaint" ). They allege that PPG is a generator and/or transporter of the solid or hazardous waste at the Site, as well as an owner and/or operator of the site, and has contributed to the past or present handling, storage, treatment, transportation, or disposal of the solid or hazardous waste at the Site, thereby presenting an imminent and substantial endangerment to health or the environment.[2] This case was docketed at Civ. A. No. 12-527. On May 25, 2012, Plaintiffs filed a motion to consolidate the two cases (ECF No. 11). On May 29, 2012, an order was entered granting this motion and consolidating the cases at No. 12-342 (ECF No. 12).

On February 28, 2013, PPG filed a motion to dismiss the complaints (ECF No. 24), accompanied by a brief and several volumes of exhibits (ECF Nos. 25-28). Ford City then filed a motion to dismiss which incorporated the arguments made by PPG in its motion and also argued that the RCRA Complaint contained no allegations that it had any involvement with the waste at issue (ECF No. 29).

On March 20, 2013, Plaintiffs moved for an extension of time in which to reply (ECF No. 33), contending that PPG's motion, the first and lengthiest argument of which concerned the doctrine of primary

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jurisdiction, was either: 1) a motion for summary judgment for which they needed to take discovery in order to properly respond; or 2) a motion under Rule 12(b)(1) for which they would need to conduct discovery to respond to factual challenges to the Court's subject matter jurisdiction; in the alternative they argued that PPG should be directed to re-file its motion under Rule 12(b)(6) without submitting matters and arguments outside the pleadings. PPG filed a response to this motion on April 2, 2013 (ECF No. 37) and Plaintiffs filed a reply brief on April 9, 2013 (ECF No. 38).

On April 10, 2013, the Court entered an order stating that:

IT IS HEREBY ORDERED that the motions to dismiss will not be treated as motions for summary judgment or motions challenging the Court's subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), but will be treated as motions pursuant to Federal Rule of Civil Procedure 12(b)(6) and Plaintiffs do not need to conduct discovery in order to respond to the substance of the motions under the appropriate standard of review;
IT IS FURTHER ORDERED that some of materials submitted by PPG will be considered because they are public records which indicate that the PADEP has been involved in the development and implementation of procedures for the remediation of the Ford City Site at issue in this case, but the substance of the documents will not be considered to establish the details of the remediation or the extent to which it has progressed or succeeded, and other materials which are not public records will not be considered at all.

(ECF No. 39.) On April 24, 2013, Plaintiffs filed their response to the motion to dismiss (ECF No. 43) and on May 14, 2013, PPG filed a reply brief (ECF No. 45).

Standard of Review

The Supreme Court has issued two decisions that pertain to the standard of review for a motion to dismiss for failure to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). The Court held that a complaint must include factual allegations that " state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " [W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice' but also the 'grounds' on which the claim rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements; " " labels and conclusions; " and " 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (citations omitted). Mere " possibilities" of misconduct are insufficient. Id. at 679. District courts are required to engage in a two part inquiry:

First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.... Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show the plaintiff has a " plausible claim for relief." ... In other words, a complaint must do more than allege the plaintiff's

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entitlement to relief. A complaint has to " show" such an entitlement with its facts.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citations omitted).

" Although a district court may not consider matters extraneous to the pleadings, 'a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.'" U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)). In addition, " [c]ourts ruling on Rule 12(b)(6) motions may take judicial notice of public records." Anspach ex rel. Anspach v. City of Phila., 503 F.3d 256, 273 n.11 (3d Cir. 2007). Plaintiffs have agreed that the following PPG exhibits are either integral to their allegations or are public records: Exs. 1, 2, 5, 7, 8, 11, 14, 21, 23, 27, 28, 29 (progress reports through January 2012), 30 and 32. (ECF No. 43 at 3 n.4.)

Pursuant to the case law, Plaintiffs' agreement and this Court's order of April 10, 2013, the Court will take judicial notice of those documents submitted by PPG that are integral to Plaintiffs' claims or that constitute public records which indicate that PADEP has been involved in the development and implementation of procedures for the remediation of the Site at issue in this case, but the substance of the documents will not be considered to establish the details of the remediation or the extent to which it has progressed or succeeded, and other materials which are not integral to their claims and are not public records will not be considered at all. Individual discussion of these documents will occur as needed below.

However, it is noted that PPG's final ground for dismissal concerns the issue of standing. " A motion to dismiss for want to standing is ... properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter." Ballentine v. United States, 486 F.3d 806, 810, 48 V.I. 1059 (3d Cir. 2007) (citations omitted).[3] The first issue a court must decide in reviewing a Rule 12(b)(1) motion is whether the challenge to the court's subject matter jurisdiction is a facial or factual attack. " In reviewing a facial attack, the court must only consider the allegations of the complaint and documents attached thereto, in the light most favorable to the plaintiff. In reviewing a factual attack, the court may consider evidence outside the pleadings." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (footnote and citations omitted). " Facial attacks ... contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true." Turicentro, S.A. v. American Airlines, Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002) (citation omitted).

Plaintiffs assert that PPG only challenges the legal sufficiency of the complaints and thus its attack is a facial one for which the Court must consider the allegations of the complaint as true. PPG contends that " resolution of the matter turns on the factual determination of whether PADEP has primary jurisdiction over the issues alleged by Plaintiffs with

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respect to [the Site]." (ECF No. 25 at 13-14.) PPG has muddied the waters by confusing standing with primary jurisdiction (which, as explained below, is not a jurisdictional issue). PPG's attack on Plaintiffs' standing to maintain this suit is a facial one which does not require reference to materials outside the complaint.

The Court of Appeals has explained that:

In evaluating whether a complaint adequately pleads the elements of standing, courts apply the standard of reviewing a complaint pursuant to a Rule 12(b)(6) motion to dismiss for failure to state a claim: " Court[s] must accept as true all material allegations set forth in the complaint, and must construe those facts in favor of the nonmoving party." Ballentine, 486 F.3d at 810 (citing Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)); see also Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73 (3d Cir. 2011) (" A dismissal for lack of statutory standing is effectively the same as a dismissal for failure to state a claim." ). The Supreme Court most recently explained this standard in Bell A. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009): " [A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)....
While the plausibility standard does not impose a " probability requirement," it does demand " more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Pursuant to Iqbal's clarification of the plausibility determination as a " context-specific task that requires the reviewing court to draw on its judicial experience and common sense," id., this Court has found that " [s]ome claims require more factual explication than others to state a plausible claim for relief." West Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir.2010). We have reasoned that, " [f]or example, it generally takes fewer factual allegations to state a claim for simple battery than to state a claim for antitrust conspiracy." Id.
" A complaint has to 'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). With respect to 12(b)(1) motions in particular, " [t]he plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely consistent with such a right." Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007).

In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243-44 (3d Cir. 2012).[4]

Defendants argue that: 1) Counts I-VIII of the CWA Complaint and the imminent and substantial danger claim in the RCRA Complaint should be dismissed or stayed based on the doctrine of primary jurisdiction abstention; 2) Counts I, II, III, IV, VII and VIII should be dismissed to the extent that they encompass NPDES

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permitting requirements for nonpoint sources, which are not within the scope of CWA citizen suits; 3) Counts I, II, III, IV, VII and VIII should be dismissed to the extent they allege a failure to obtain a CWA permit for a point source discharge because PPG does have authorization to discharge through Outfall 001 (and PPG did not have to obtain a permit other than for Outfall 001 because Ford City was the owner or operator of the Site at all relevant times, and the CWA, enacted in 1972, cannot be applied retroactively) and PPG is complying with the 2009 Administrative Order by treating for pH (and to the extent Plaintiffs are challenging the treatment of other pollutants, they are not covered by the Order and thus Plaintiffs are attacking PADEP's judgment); 4) Counts V and VI must be dismissed because CWA allows for citizen suits to enforce effluent standards and limitations, not arising out of failure to contain a schedule for the application of NPDES permits and, in any event, the Plan did contain a schedule and PADEP approved it; 5) Counts IX and X must be dismissed for failure to comply with mandatory notice requirements in that there is no list of discharge violations for July 2010 or November 2010; 6) Counts IX and X must also be dismissed because they concern only past violations, not ongoing ones; 7) Counts XI and XII must be dismissed because they concern only past reporting violations, not ongoing ones; 8) the RCRA Complaint fails to state an imminent and substantial danger claim as to plumbing fixture landfill or the baseball fields (PPG had no involvement with them); and 9) Plaintiffs lack standing to pursue RCRA and CWA claims because citizen suits do not automatically confer standing and groups do not have unique, particularized interest beyond that possessed by the public at large. Ford City incorporates PPG's arguments and also argues that the RCRA Complaint contains no allegations that it had any involvement, let alone the active involvement required for liability, with the waste at issue.

Plaintiffs respond that: 1) the doctrine of primary jurisdiction does not apply; 2) Counts I and II are properly asserted under the CWA which regulates only point source discharges and Counts III, IV, VII and VIII are properly asserted under the CSL which regulates both point source and nonpoint source discharges; 3) Plaintiffs do not complain of only one point source discharge (Outfall 001), but also allege discharges from the " Drainage Ditch," culverts and seeps, all of which are point sources, and these allegations are sufficient to withstand a motion to dismiss, Plaintiffs are alleging that PPG must have an NPDES permit to discharge pollutants through each point source on the Site, not just for Outfall 001, the 2009 Administrative Order is not an NPDES permit or a substitute for one, PPG's argument that it is not the owner or operator of the Site contradicts the allegations of the complaints and documents of record (and under the CWA, PPG can be held liable for discharging pollutants whether it owns or operates the Site or not), Plaintiffs are seeking to hold PPG liable for discharges after the CWA became effective, and whether PPG is complying with the 2009 Administrative Order is a matter in dispute; 4) Counts V and VI arise out of the 2009 Administrative Order and are not moot because nothing in PADEP's November 9, 2011 letter (assuming it can be considered) substantively addresses PPG's proposed Treatment Plan; 5) Plaintiffs provided adequate notice of the violations in Counts IX and X and PPG's contention to the contrary cites a few typographical errors that in no way prevented PPG from being able to identify the relevant violations; 6) Counts IX and X properly allege ongoing discharge violations; 7) Counts XI

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and XII properly allege ongoing reporting violations; 8) the RCRA Complaint extends to the full property, including the ballfields and the plumbing fixture landfill area; and 9) Plaintiffs have properly pled that they have standing, both as organizations which have suffered injury from PPG's pollution and as representatives of thousands of members who reside in the vicinity of, or own property or recreate in, on or near the waters of the Allegheny River affected by the discharge of pollutants from the Site. Finally, with respect to Ford City's motion to dismiss, Plaintiffs respond that they do not state any causes of action against Ford City, but it is named as an indispensable party pursuant to Federal Rule of Civil Procedure 19(a) based on its status as owner of the Site.

In its reply brief, PPG argues that: 1) Plaintiffs cannot allege that leachate seeps and uncontrolled storm water discharges are point source discharges, because this is a legal issue and under the law, these discharges are nonpoint source discharges for which no permit is necessary, and requiring a permit to address PPG's historical disposal or industrial activities would constitute retroactive application of the CWA; 2) Counts I-IV alleged only one point source, Outfall 001, and since this discharge has been mandated by PADEP's 2009 Order and July 2 Addendum, it is " permitted" or " authorized" within the meaning of the CWA, and even if the Court determined that PPG is liable for failing to have a formal NPDES permit, the only relief the Court could provide would be either for PPG to obtain a permit -- which PADEP has already done -- or for PPG to eliminate the discharges from the Site -- which would conflict with PADEP's order; 3) Plaintiffs cannot allege that there are " ongoing violations" as they have cited only discrete instances of effluent exceedances, and there are no ongoing reporting violations; 4) with respect to the Eljer landfill, Plaintiffs have failed to allege that PPG handled, stored, treated, transported, or disposed of solid waste or hazardous waste in these areas, thus the RCRA claims are missing this essential element; 5) under controlling Third Circuit precedent, Plaintiffs lack both representational standing, particularly because they have not alleged how a favorable decision would redress their individual members' alleged injuries, and standing in their own right, because they allege only an injury to their organizational missions, which is insufficient, nor can they establish " informational" injury based on reports that PPG submitted a few days late to PADEP; and 6) Plaintiffs falsely contend that the records to which PPG refers are not public records and erroneously argue about subject matter jurisdiction when PPG is contending that the Court should decline to exercise its jurisdiction based on the doctrine of primary jurisdiction, and their arguments fail because PADEP is actively involved in enforcement and oversight of the Site.

Standing

As noted above, the issue of standing challenges the Court's subject matter jurisdiction. Ballentine, 486 F.3d at 810. Therefore, this issue must be addressed first. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

The Supreme Court has held that:

In every federal case, the party bringing the suit must establish standing to prosecute the action. " In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The standing requirement is

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born partly of " 'an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.'" Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-1179, 226 U.S. App. D.C. 14 (C.A.D.C. 1982) (Bork, J., concurring)).

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). The Court explained that:

our standing jurisprudence contains two strands: Article III standing, which enforces the Constitution's case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); and prudential standing, which embodies " judicially self-imposed limits on the exercise of federal jurisdiction," Allen, 468 U.S., at 751, 104 S.Ct. 3315. The Article III limitations are familiar: The plaintiff must show that the conduct of which he complains has caused him to suffer an " injury in fact" that a favorable judgment will redress. See Lujan, 504 U.S., at 560-561, 112 S.Ct. 2130. Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses " the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked." Allen, 468 U.S., at 751, 104 S.Ct. 3315. See also Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955-956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). " Without such limitations--closely related to Art. III concerns but essentially matters of judicial self-governance--the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights." Warth, 422 U.S., at 500, 95 S.Ct. 2197.

Id. at 11-12. An association may have standing in its own right or as a representative of its members who have been injured in fact. Pennsylvania Psychiatric Society v. Green Spring Health Servs., Inc., 280 F.3d 278, 283 (3d Cir. 2002) (citations omitted).

However, the manner in which standing must be supported depends upon the stage of the litigation at which the issue is raised:

At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we " presum[e] that general allegations embrace those specific facts that are necessary to support the claim." [Lujan v.] National Wildlife Federation, 497 U.S. [871], 889, 110 S.Ct. [3177,] 3189, 111 L.Ed.2d 695 [(1990)]. In response to a summary judgment motion, however, the plaintiff can no longer rest on such " mere allegations," but must " set forth" by affidavit or other evidence " specific facts," Fed.Rule Civ.Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be " supported adequately by the evidence adduced at trial." Gladstone [Realtors v. Village of Bellwood], 441 U.S. [91], at 115, n. 31, 99 S.Ct. [1601,] 1616 n.31, 60 L.Ed.2d 66 [(1979)].

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Defenders of Wildlife, 504 U.S. at 561.

In a case involving an association (FOE) that brought a citizen suit under the CWA alleging noncompliance with an NPDES permit, the Supreme Court explained that:

In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), we held that, to satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an " injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).

Friends of the Earth, Inc. v. Laidlaw Envt'l Servs (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). " The relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff." Id. at 181. In addition, " a plaintiff must demonstrate standing separately for each form of relief sought." Id. at 185. The Court observed that " environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Id. at 183 (citations omitted). The Court held that FOE demonstrated on a fully developed record that it had standing to seek both injunctive relief and civil penalties when it submitted affidavits from various members indicating that they used the North Tyger River and the area around it for fishing, camping, swimming, picnicking and other activities, but could not do so any longer because of Laidlaw's discharges into the river. Id. at 181-84. See also In ...


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