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Gallagher v. East Buffalo Township

United States District Court, Third Circuit

August 29, 2013



MATTHEW W. BRANN, District Judge.

For the following reasons, defendant's motion for summary judgment on plaintiff's federal claim is granted; plaintiff's motion for summary judgment is denied; and jurisdiction over plaintiff's state law claims is relinquished.

I. The Complaint

On April 25, 2012, plaintiff Violet Gallagher (hereinafter, "Gallagher") filed a complaint against defendant East Buffalo Township (hereinafter, the "Township") seeking relief for alleged violations of the federal Clean Water Act, 33 U.S.C. § 1251, et seq., Pennsylvania's Clean Streams Law, 35 P.S. § 691.1, et seq., and Pennsylvania's Stormwater Management Act, 32 P.S. § 680.1, et seq., as well as for common law nuisance and trespass. (Compl., ECF No. 1). All of the claims arise from the discharge of supposedly "turbid, malodorous, garbage laden water" onto Gallagher's property and into a tributary of the Susquehanna River by the Township's stormwater management system. (Id. ¶ 2).

II. Summary Judgment Standard

The parties have filed cross-motions for summary judgment. Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" where it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute is "genuine" where "the evidence is such that a reasonable jury, " giving credence to the evidence favoring the nonmovant and making all reasonable inferences in the nonmovant's favor, "could return a verdict for the nonmoving party." Id.

For movants and nonmovants alike, the assertion "that a fact cannot be or is genuinely disputed must" be supported by "citing to particular parts of materials in the record, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e)(2).

Thus, where the moving party's motion is properly supported and his evidence, if not controverted, would entitle him to judgment as a matter of law, the nonmoving party, to avoid summary judgment in his opponent's favor, must answer by setting forth "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson , 477 U.S. at 250. In the face of the moving party's evidence, the nonmoving party's mere allegations, general denials or vague statements will not create a genuine factual dispute. See Bixler v. Cent. Pennsylvania Teamsters Health & Welfare Fund , 12 F.3d 1292, 1302 (3d Cir. 1993). Only citation to specific facts is sufficient. Anderson , 477 U.S. at 250.

Where the nonmoving party has had adequate time for discovery and will bear the burden of proof at trial, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial, " and summary judgment is warranted. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986).

When considering cross-motions for summary judgment, the Court considers each motion separately, applying the standard set forth above. See Transportes Ferreos de Venezuela II CA v. NKK Corp. , 239 F.3d 555, 560 (3d Cir. 2001) (quoting Rains v. Cascade Indus., Inc. , 402 F.2d 241, 245 (3d Cir. 1968) (cross-motions for summary judgment "are no more than a claim by each side that it alone is entitled to summary judgment"); Benckini v. Hawk , 654 F.Supp.2d 310, 315 (E.D. Pa. 2009). The Court cannot view "facts" in the light most favorable to two nonmoving parties simultaneously, and in some cases the best course may be to recite two statements of "facts" for the same case or even to write entirely separate opinions disposing of the respective motions. See Interbusiness Bank, N.A. v. First Nat'l Bank of Mifflintown , 318 F.Supp.2d 230, 236 (M.D. Pa. 2004) (Conner, J.). The Court in this case has written a single opinion with a single recitation of the facts because the factual disputes between the parties are few.

III. Statutory Background of the Dispute

Ms. Gallagher's federal claim reaches this Court pursuant to the Clean Water Act's (hereinafter, "CWA") "citizen suit" provision, which permits (with certain limitations) "any citizen [to] commence a civil action on his own behalf... against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of... an effluent standard or limitation under [Chapter 26 of Title 33], " which is the chapter of the United States Code enumerating laws with respect to "Water Pollution Prevention and Control." 33 U.S.C. § 1365(a)(1)(A).

Within Chapter 26, there is 33 U.S.C. § 1311(a), which makes "the discharge of any pollutant by any person... unlawful, " subject to certain exceptions. "Discharge of a pollutant" is defined, in relevant part, as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). "Pollutants" are defined, in relevant part, as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." 33 U.S.C. § 1362(6). A "point source" is defined, in relevant part, as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362(14).

The broad prohibition of Section 1311(a) is significantly narrowed, however, by 33 U.S.C. § 1342(a), which provides that the Administrator of the Environmental Protection Agency[1] ("EPA") "may... issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge will meet [certain requirements]." Together, these provisions make up the CWA's "central... requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable waters of the United States." Decker v. Nw. Envtl. Def. Ctr. , 133 S.Ct. 1326, 1331 (2013).

As pertinent to Ms. Gallagher's claim, the prohibition of Section 1311(a) is narrowed further still by the Congressional grant of authority to the EPA to "leave [some] stormwater discharges unregulated."[2] Conservation Law Found. v. Hannaford Bros. Co. , 327 F.Supp.2d 325, 331 (D. Vt. 2004). Benign as it may sound, "storm water is often heavily polluted." Los Angeles Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc. , 133 S.Ct. 710, 712 (2013). Nevertheless, exercising its authority to exempt certain storm water discharges from the permit requirement, the EPA has provided that an operator - such as the Township here - of a "small municipal separate storm sewer system" (known as an "MS4")[3] is required to obtain a permit for "discharges composed entirely of storm water" only when the MS4 "is located in an urbanized area as determined by the latest Decennial Census by the Bureau of the Census" or designated for regulation by an NPDES permitting authority. 40 C.F.R. §§ 122.26(a)(9)(i)(A)-(D) & 122.32(a). The parties agree that the Township is not located in an "urbanized area" and that it has not been designated for regulation. (See Def.'s Facts, May 10, 2013, ECF No. 38 ¶¶ 3, 6-8) (hereinafter, "Def.'s Facts"). See also United States Environmental Protection Agency, Office of Water, EPA 833-F-00-004, Urbanized Areas: Definition and Description (2012). The parties dispute, rather, involves the threshold issue of whether discharges from the Township's MS4 are "composed entirely of storm water."

IV. Factual Background

The reader should consider the following facts undisputed unless otherwise noted.

For over 35 years, Ms. Gallagher has owned and resided at 425 Beagle Club Road outside Lewisburg, Pennsylvania (the "Gallagher property"). (Def.'s Facts ¶ 1). The Gallagher property is on the south side of Beagle Club Road, an east-west public way that is currently owned and maintained by the Township. (Id. ¶¶ 10, 13). On the north side of Beagle Club Road is the Fox Hollow property, which, prior to 1989, was approximately 31 acres of undeveloped land, but which was developed into residential lots between 1989 and 1997. (Id. ¶¶ 11-12).

Since (at the latest) 1990, there has been a drainage pipe running north-south under Beagle Club Road. (Id. ¶¶ 14, 16). The pipe, currently owned and maintained by the Township, discharges onto the Gallagher property. (Id. ¶¶ 14-15). A drainage ditch, likewise owned and maintained by the Township, also runs along the Gallagher side of Beagle Club Road. (Id. ¶ 19; Pl.'s Facts, May 10, 2013, ECF No. 41 ¶ 6 (hereinafter, "Pl.'s Facts")). In 1999 or 2000, the Township - by installing a new berm (Gallagher's contention) or paving an existing berm (the Township's contention) by the ditch - ...

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