United States District Court, Western District of Pennsylvania
MEMORANDUM AND ORDER
CATHY BISSOON UNITED STATES DISTRICT JUDGE
This matter is before the Court upon Defendant’s Motion to Dismiss (Doc. 7). For the reasons that follow, Defendant’s motion will be granted.
Defendant Shenango Incorporated (“Shenango”) operates the Neville Island Coke Plant (“the Facility”), a coke manufacturing and byproducts recovery facility located in Allegheny County, Pennsylvania. See Amended Complaint (Doc. 4) ¶¶ 1, 5. Group Against Smog and Pollution (“GASP”) is a Pennsylvania non-profit dedicated to promoting a healthy environment by improving the air quality in southwestern Pennsylvania and the surrounding regions. Id. ¶ 2. GASP’s membership is composed of individuals who live in the vicinity of the Facility and are therefore exposed to the Facility’s emissions. Id. ¶ 3.
B. Regulatory Background
The Facility is subject to National Ambient Air Quality Standards (“NAAQS”) established by the Environmental Protection Agency (“EPA”) pursuant to the Clean Air Act, 42 U.S.C. § 7604. The NAAQS provide, inter alia, emissions standards regulating the concentrations of certain pollutants allowed to be discharged into the ambient air. See id. §§ 7408, 7409. In turn, each state must develop a “state implementation plan” (“SIP”), subject to EPA approval, detailing the state’s strategy for achieving compliance with the NAAQS. Id. § 7410. Once approved by the EPA, the terms of the SIP become enforceable standards under federal law. Id. § 7413.
Pennsylvania’s SIP designates the Allegheny County Health Department (“ACHD”) as the agency responsible for enforcing air pollution laws in Allegheny County. See Amended Complaint (Doc. 4) ¶ 15. To that end, the ACHD’s Rules and Regulations contain a series of emissions standards designed to protect “the health, safety and welfare of the citizens of Allegheny County.” ACHD Rules and Regulations Art. XXI, § 2101.02.c.1. Three of these regulations are pertinent to the instant case. First, Section 2105.21.b.1 restricts visible emissions from any battery of coke ovens to no more than five percent (5%) of the door areas of the operating coke ovens (the “five percent door emissions standard”). Second, Section 2105.21.f.3 prohibits combustion stack emissions with opacity greater than 20 percent for three minutes over a 60 minute period (the “20 percent combustion stack opacity standard”). Finally, Section 2105.21.f.4 prohibits combustion stack emissions with opacity greater than 60 percent (the “60 percent combustion stack opacity standard”).
C. Factual Background
In 2012, the ACHD, EPA, and the Pennsylvania Department of Environmental Protection (“DEP”) filed an action in the United District Court for the Western District of Pennsylvania against Shenango based on alleged violations of each of the three standards described above. On November 6, 2012, the parties filed a consent decree (the “2012 Consent Decree”) purporting to resolve the violations at issue in that action. Id. ¶ 30; Consent Decree (Doc. 8-1). The 2012 Consent Decree incorporated the limits on visible emissions set forth in Article XXI of the ACHD Rules and Regulations, required Shenango to implement various corrective measures to address the 20 and 60 percent combustion stack opacity standards, and specified a schedule of stipulated penalties in the event of further non-compliance. Consent Decree (Doc. 8-1) ¶¶ IV.A.1-3. The 2012 Consent Decree also assessed $1.75 million in civil penalties. Id. ¶ VII.A. Additional stipulated penalties of $148, 500 and $28, 350 were assessed on April 8, 2014, and July 3, 2014, respectively, based on violations of the 20 and 60 percent combustion stack opacity standards that occurred between 2012 and December 31, 2013. See Stipulated Penalty Demands (Doc. 8-3).
On February 6, 2014, GASP sent Shenango a notice of intent to sue, in which it cited violations of the five percent door emissions standard and the 20 and 60 percent combustion stack opacity standards that allegedly occurred between July 26, 2012, and September 30, 2013. Amended Complaint (Doc. 4) ¶ 32; Notice of Intent (Doc. 4-3). On April 7, 2014, the ACHD initiated an enforcement action against Shenango in the Allegheny County Court of Common Pleas based on the same violations of the five percent door emissions standard. See Amended Complaint (Doc. 4) ¶ 33. On that same date, the ACHD and Shenango presented the court with a proposed Consent Order and Agreement (the “2014 COA”) intended to settle those claims. Id. ¶ 34. Pursuant to that agreement, the ACHD assessed a $300, 000 civil penalty, required Shenango to undertake various corrective measures to reduce air pollution, and reaffirmed that the 2012 Consent Decree remained in effect with respect to violations of the 20 and 60 percent combustion stack opacity standards. See 2014 COA (Doc. 4-6) ¶¶ 20, IV, V.
Dissatisfied with the outcome of the ACHD’s 2014 enforcement action, GASP initiated the instant lawsuit on May 8, 2014. (Doc. 1). In its amended complaint, GASP alleges that Shenango violated the 20 and 60 percent combustion stack opacity standards at least once on 369 separate days between July 26, 2012, and March 31, 2014. See Amended Complaint (Doc. 4) ¶ 40. GASP also alleges that Shenango violated the five percent door emissions standard on 39 separate days during that same time period. Id. ¶ 37. Finally, GASP asserts that Shenango has continued to violate each of these standards on an intermittent basis since March 31, 2014. Id. ¶ 41.
Resolution of the instant motion turns on a narrow issue: whether the Court lacks subject matter jurisdiction over this action because the ACHD is already diligently prosecuting GASP’s claims. Because this issue presents a factual challenge to this Court’s jurisdiction, “the court is neither confined to the allegations in the complaint nor bound to presume their truth.” Citizens for Clean Power v. Indian River Power, LLC, 636 F.Supp.2d 351, 356 (D. Del. 2009) (holding that a jurisdictional challenge based on “diligent prosecution” is a factual challenge pursuant to Federal Rule of Civil Procedure 12(b)(1)). Moreover, the Court may consider ...