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Citizens Coal Council v. Matt Canestrale Contr., Inc.

United States District Court, W.D. Pennsylvania

September 30, 2014


Page 594

For Citizens Coal Council, Plaintiff: Jeffrey V. Mansell, LEAD ATTORNEY, Goldberg, Persky & White, P.C., Pittsburgh, PA USA; Whitney C. Ferrell, LEAD ATTORNEY, John Patton Dycus, PRO HAC VICE, Environmental Integrity Project, Washington, DC USA; Richard Webster, PRO HAC VICE, Public Justice, P.C., Washington, DC USA.

For Matt Canestrale Contracting, Inc., Defendant: Marshall R. Hixson, Walter Blaine Early, PRO HAC VICE, Stites & Harbison PLLC, Lexington, KY USA; William T. Gorton, III, Stites & Harbison, Lexington, KY USA.


Page 595

ECF No. 27

LISA PUPO LENIHAN, Chief United States Magistrate Judge.

Currently pending before the Court for disposition is the Motion to Dismiss filed by Defendant, Matt Canestrale Contracting, Inc. (" MCC" ), pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction (ECF No. 27). Plaintiff, Citizens Coal Council (" CCC" ), brought this action under the citizen suit provision of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B) (" RCRA" ), to abate an imminent and substantial endangerment to health or the environment allegedly caused by solid waste located on the LaBelle Coal Refuse Disposal Area (the " Site" ), currently owned and operated by MCC. Plaintiff also asserts violations of various Pennsylvania statutes by MCC. For the reasons that follow, the Court will deny Defendant's motion to dismiss.


A. Rule 12(b)(1)

As a preliminary matter, CCC disputes that the motion to dismiss is properly brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rather, CCC argues that the motion to dismiss should have been brought pursuant to Rule 12(b)(6) for failure to state a claim

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upon which relief may be granted. In support, CCC submits that when the statute provides the basis for both subject matter jurisdiction and a plaintiff's substantive claim for relief, as in the case at bar, a motion to dismiss under Rule 12(b)(1) is proper only when the allegations of the complaint are frivolous, citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1040 (9th Cir. 2004), and Thornhill Publishing Co. v. Gen. Tel. Co., 594 F.2d 730, 734 (9th Cir. 1979). CCC contends that its allegations that coal refuse and coal ash are solid wastes as defined by Section 1004(27) of the RCRA, 42 U.S.C. § 6903(27), are clearly not frivolous, and thus, the motion to dismiss should be reviewed under the Twombly/Iqbal standard for Rule 12(b)(6) motions.

In response, MCC argues that Plaintiff's reliance on Safe Air is misplaced, as the U.S. Court of Appeals for the Third Circuit has specifically rejected the approach followed by the Ninth Circuit. Def.'s Reply in Supp. of Mot. to Dismiss at 2, ECF No. 41. In support, MCC relies on S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 344 n. 7, 56 V.I. 901 (3d Cir. 2012). However, S.R.P. is factually distinguishable from the case at bar, and therefore, not dispositive.

In S.R.P., the court of appeals considered whether the government's motion to dismiss plaintiff's claim under the Federal Tort Claims Act (" FTCA" ), was properly brought pursuant to Rule 12(b)(1) as a challenge to the court's subject matter jurisdiction, as opposed to a challenge on the merits. The district court dismissed the case on the basis that the discretionary function exception to the FTCA deprived it of jurisdiction and thus immunized the Government from suit.[1] In affirming the district court's dismissal of the case under Rule 12(b)(1), the court of appeals opined that overlapping issues of proof existed, " causing the jurisdictional challenge to be 'intertwined with the merits[,]' . . . because many of the same facts that are relevant to the question of whether the discretionary function exception applies are also relevant to the merits question . . .." Id. at 344. In reaching this conclusion, the court of appeals noted that its sister courts of appeals for the Fifth and Eleventh Circuits disagreed with its approach to cases where the jurisdiction issue is intertwined with the merits, id. at 344 n. 7, however, neither of those cases involved a claim brought under the RCRA.

In the case at bar, the Defendant is a corporation,[2] not the United States government, and therefore, the Court is not concerned here with ensuring that the conditions for waiving immunity have been met as a prerequisite to bringing suit in the first instance. Moreover, the language of the RCRA is clear--" [t]he district court shall have jurisdiction [over citizen suits brought] . . . to restrain any person who has contributed or who is contributing to the past or present handling, storage,

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treatment, transportation, or disposal of any solid or hazardous waste referred to in [42 U.S.C. § 6972(a)](1)(B)." 42 U.S.C. § 6972(a). See also Raritan Baykeeper v. NL Indus., Inc., 660 F.3d 686, 690-01 (3d Cir. 2011) (holding it was undisputed that district court had jurisdiction over RCRA claims as none of the enumerated exceptions to bringing an ISE citizen suit[3] in 42 U.S.C. § 6972(b) applied); Adkins v. VIM Recycling, Inc., 644 F.3d 483, 492 (7th Cir. 2011) (finding that plaintiffs alleged colorable claims for relief directly under the RCRA and even if unsuccessful, they were sufficiently substantial to give the district court subject matter jurisdiction over the case). The reiteration of part of Section 6972(a)(1)(B) in the paragraph conferring jurisdiction upon the federal district courts is just that--a reiteration--not a condition precedent to the district court exercising subject matter jurisdiction. As the Amended Complaint on its face alleges a violation of a federal statute--the RCRA--this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Accordingly, the Court will review MCC's motion to dismiss under the Rule 12(b)(6) pleading standard.

B. Rule (12)(b)(6)

Recently, the United States Court of Appeals for the Third Circuit aptly summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):

Under the " notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with " a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), a claimant must state a " plausible" claim for relief, and " [a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although " [f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a plaintiff " need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).

Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).

MCC has attached a number of exhibits to its motion to dismiss because it has brought the motion under Rule 12(b)(1) claiming a factual attack to subject matter jurisdiction. However, because this Court has determined that the motion to dismiss must be analyzed under the Rule 12(b)(6) standard, the Court will consider only the allegations of the Amended Complaint, its attached exhibits, and matters of public record in deciding the motion to dismiss. Pension Benefit Guar. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described or identified in the amended complaint may also be weighed if the plaintiff's claims are based upon those documents. Id. (citations omitted). This Court may consult those documents without converting the motion to dismiss into a

Page 598

motion for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).


In deciding a motion to dismiss under Rule 12(b)(6), the Court assumes that the following facts alleged in Plaintiff's First Amended Complaint (ECF No. 26) (hereinafter " Amended Complaint" ) are true.[4] CCC " is a Pennsylvania corporation that advocates for the abatement of pollution from mines, . . . and challenging and changing the practices of the coal industry to protect both people and the environment." Am. Compl. ¶ 17. MCC owns and operates the LaBelle Refuse Site (the " Site" ), a historic mine dump, located in Luzerne Township, Fayette County, Pennsylvania, which " consists of an abandoned coal refuse pile made up of approximately 40 million tons of waste, two coal slurry ponds, and millions of cubic yards of coal combustion waste (coal ash) piled tens of feet deep on top of the coal refuse[.]" Id. at ¶ ¶ 2-3. In paragraph 4 of its Amended Complaint, CCC alleges:

Coal refuse is acidic and contains high levels of environmentally toxic metals like iron and manganese. Coal ash waste is generally alkaline and contains high levels of environmentally toxic heavy metals such as arsenic, boron, lead, selenium, and hexavalent chromium. Water that contacts with coal refuse and coal ash waste creates leachate that enters ground or surface waters threatens the health of local communities, makes groundwater unsafe to drink, harms aquatic and other wildlife, and pollutes rivers and streams. Leachate from both types of waste also causes high levels of salts in water, which is harmful to aquatic and other wildlife and freshwater streams.

Am. Compl. ¶ 4.

According to CCC, MCC's operation uses coal ash waste from power plants to reclaim and fill the Site and treat the underlying coal refuse pile. Id. at ¶ 6. Drainage seeping from the Site at several locations is flowing to Pennsylvania waters without a permit, which has caused and continues to cause pollution in the four streams close to the Site. Id. at ¶ ¶ 7-8. The pollution of surface waters caused by the Site exceeds levels at which scientific studies have found harm to aquatic life, and as such, may present an imminent and substantial endangerment to the environment in violation of the RCRA. Id. at ¶ 9.

Twenty-six (26) of CCC's members live or work within a mile of the Site, but refrain from hunting, fishing, or engaging in other recreation on and along the Monongahela River and its tributaries near the Site in the LaBelle area because of pollution from the Site. Id. at ΒΆ 18. CCC contends that these members are adversely affected by the ground and surface water discharges, fugitive dust ...

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