Conservation Law Foundation, Inc. v. American Recycled Materials, Inc.

Filing 23

Judge Richard G. Stearns: ORDER entered granting 7 Motion to Dismiss for Failure to State a Claim. ARM's motion to dismiss (Dkt #7) is GRANTED, and CLF's Complaint is DISMISSED without prejudice. (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-12451-RGS
CONSERVATION LAW FOUNDATION, INC.
v.
AMERICAN RECYCLED MATERIALS, INC.
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO DISMISS
June 16, 2017
STEARNS, D.J.
Plaintiff Conservation Law Foundation, Inc. (CLF), a membersupported environmental nonprofit, brings this citizen suit under the Clean
Water Act (CWA) against defendant American Recycled Materials, Inc.
(ARM), asserting that ARM is discharging pollutants into waters of the
United States without the necessary permits. ARM has moved to dismiss.
For the following reasons, the court will grant the motion.
BACKGROUND
For the purposes of a motion to dismiss, the court takes the facts
alleged in the Complaint as true and draws all reasonable inferences in favor
of CLF as the nonmoving party. See Katz v. Pershing, LLC, 672 F.3d 64, 7071 (1st Cir. 2012).

The CWA requires permits for most discharges of pollutants from a
point source. See 33 U.S.C. § 1311(a); id. § 1362(14) (defining “point source”
as a “discernable, confined and discrete conveyance,” such as a “pipe, ditch,
[or] channel”). An exception is stormwater, the discharge of which requires
a permit only if the discharge falls into certain enumerated categories. See
id. § 1342(p).

One such category is “industrial discharges.”

Id. §

1342(p)(3)(A).

Environmental Protection Agency (EPA) regulations

prescribe certain categories of “facilities” which engage in “industrial
activity” and must, as a result, seek permits. See 40 C.F.R. § 122.26(b)(14).
Many of these categories are defined by reference to “Standard Industrial
Classification” (SIC) codes, which segment different classes of industrial
activity.
This statutory framework forms the backdrop. ARM operates a facility
at 157-165 Lowland Street in Holliston, Massachusetts. The facility abuts
Bogastow Brook, a small stream that flows into South End Pond and the
Charles River. The parties do not agree on the nature of the work done at
ARM’s facility.

CLF alleges that ARM engages in “processing and/or

manufacturing cut stone and gravel, asphalt and cement mixtures, and wood
chips, recycling materials, and collecting and processing refuse,” thus falling
within a number of categories of industrial activity for which discharge
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permits are required.1 Compl. ¶¶ 31, 55. For its part, ARM describes its
activities as crushing collected asphalt, brick, and concrete to create a “small
size stone-like product” sold as “construction aggregate” for use in
construction projects, principally as a strengthening agent in paving. Mem.
at 4. ARM contends that this activity falls under SIC code 5032 (“Brick,
Stone, and Related Construction Materials”), which is not included under 40
C.F.R. § 122.26(b)(14). Id. at 10-11. The parties do agree that ARM has never
obtained a permit for stormwater discharges.
CLF further alleges that stormwater runoff from the ARM facility
reaches Bogastow Brook from point sources, channeling pollutants into the
stream. It contends that during rainstorms or snowmelt, runoff flows over
uncovered piles of recycled materials at the facility, gathering dust, solids, oil
and gas, and other pollutants. Compl. ¶¶ 34-39. CLF contends that this
runoff then reaches the Brook through “site grading, surface water channels,
subsurface hydrological connections, detention ponds, pipes, and other
conveyances.” Id. ¶ 40.

Specifically, the Complaint alleges that ARM falls within SIC codes
1422-1429, 1442, 2499, 2951, 4953, 5093, and “Major Group 32,” an
umbrella for multiple types of industrial activity, all of which CLF contends
are subject to regulation under 30 C.F.R. § 122.26(b)(14) and its
implementing “Multi-Sector General Permit,” 80 Fed. Reg. 34,403 (2015).
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1

In addition, CLF alleges that ARM’s industrial activities create “process
wastewater”: “water which, during manufacturing or processing, comes into
direct contact with or results from the production or use of any raw material,
intermediate product, finished product, byproduct, or waste product.” 40
C.F.R. § 122.2. CLF alleges that ARM uses water during its industrial
processes for “washing and spraying recycled asphalt, concrete, gravel, soil,
and other material piles; machinery and equipment; loading and unloading
areas; and maintenance areas,” Compl. ¶ 49, and that this water is then
discharged into Bogastow Brook, id. ¶ 50. The parties agree that ARM has
never obtained a permit for discharges of process wastewater.
CLF filed this lawsuit under the citizen suit provision of the CWA, 33
U.S.C. § 1365, in December of 2016. In due course, ARM moved to dismiss,
asserting that CLF lacks standing to litigate the issue and that CLF’s
Complaint fails to make out a viable legal claim. See Fed. R. Civ. P. 12(b)(1),
(6). The court heard argument on the motion on June 1, 2017.
DISCUSSION
Standing is a necessary prerequisite to a court’s Article III authority to
adjudicate a case, and challenges to standing therefore must be addressed
before reaching the merits. See Baena v. KPMG LLP, 453 F.3d 1, 4 (1st Cir.
2006). “[A]t the pleading stage, the plaintiff bears the burden of establishing
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sufficient factual matter to plausibly demonstrate [its] standing to bring the
action.” Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016).
The familiar triad of injury in fact, causation (or “traceability”), and
redressability comprises Article III standing. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560-561 (1992). When an organization like CLF seeks to represent
the interests of its members, it must demonstrate that “at least one of its
members has standing in his or her own right, the interests served by the suit
are pertinent to the mission of the organization, and relief does not require
the presence of the members in the suit.” Town of Norwood v. F.E.R.C., 202
F.3d 392, 405-406 (1st Cir. 2000).
ARM challenges CLF’s standing on three grounds. First, it argues that
CLF has neglected the abecedarian requirement that it must identify a group
member who has been harmed by ARM’s conduct. See Draper v. Healey,
827 F.3d 1, 3 (1st Cir. 2016) (Souter, J.). CLF has now mooted this issue by
responding to the motion to dismiss with affidavits from three of its
members describing the injuries they believe ARM has caused.
That leads to ARM’s second objection, which is that CLF has not
alleged an actual or imminent harm establishing an injury in fact. This
argument fails in light of the member affidavits. CLF member Sierra H.
Bright declares that she own a farm along the Charles River downstream of
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Bogastow Brook. Dkt #10-2, ¶¶ 4-5. The Charles River frequently floods her
fields, and as a result she is concerned that pollution in the water
contaminates the soil and reduces her crop yield. Id. ¶ 14. She also states
that she enjoys observing wildlife along the river from her home and land,
and that pollution detracts from the experience. Id. ¶¶ 7, 11, 13. Similarly,
CLF member Sara L. Wragge declares that she kayaks regularly on South End
Pond and the Charles River downstream of Bogastow Brook, and that she
views wildlife for pleasure on these excursions. Dkt #10-4, ¶ 4. These
activities are dependent on clean water, and she is concerned that discharges
from ARM degrade water quality and reduce her enjoyment. Id. ¶¶ 9-10.
Finally, CLF member Cornelia C. Roberts declares that she regularly
recreates along the Charles River downstream of Bogastow Brook, observing
wildlife and views of both the Brook and the Charles River. Dkt #10-3, ¶¶ 4,
7, 8. She similarly states that her enjoyment of these activities is adversely
impacted by water pollution. Id. ¶ 12.
These averments suffice to establish injury in fact to a CLF member. It
has long been established that harms to aesthetic and recreational interests
are injuries in fact for standing purposes and rise above a mere speculative

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prospect of harm. See Sierra Club v. Morton, 405 U.S. 727, 735 (1972); see
also Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009).2
ARM’s third argument challenges the sufficiency of CLF’s allegations
of causation. Specifically, ARM contends that CLF has failed to plead a fairly
traceable link between the claimed discharges and the harms allegedly
suffered by CLF’s members. This issue is better resolved on the merits. The
Complaint alleges that ARM’s discharges contain pollutants, ¶ 36, and each
of the member declarations describes harms resulting from water pollution
downstream of the facility. More broadly, the traceability requirement for
standing “does not mean that plaintiffs must show to a scientific certainty
that defendant’s [actions], and defendant’s [actions] alone, caused the
precise harm suffered by plaintiffs . . . . The fairly traceable requirement . . .
is not equivalent to a requirement of tort causation.” Interfaith Cmty. Org.
v. Honeywell Int’l, Inc., 399 F.3d 248, 257 (3d Cir. 2005), quoting Pub.

Contrary to ARM’s suggestion, there is no requirement that a CLF
member allege that he or she no longer uses the affected waterways. While
such allegations are commonly used to establish standing, see, e.g., Me.
People’s All. & Nat. Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 284
(1st Cir. 2006), the relevant question is simply whether ARM’s activities
create recreational or aesthetic harms, which can be established by a
reduction in aesthetic or recreational value, see, e.g., Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000);
Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1149 (9th Cir.
2000).
2

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Interest Res. Grp. of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d
64, 72 (3d Cir. 1990). The fact that ARM allegedly discharges pollutants into
the Bogastow Brook, and that those discharges contribute to the aesthetic
injuries the plaintiffs have suffered, suffices to establish traceability for
standing purposes.3
ARM’s arguments about causation, however, touch on the core
argument supporting its motion to dismiss under Rule 12(b)(6).

ARM

contends that CLF has failed to plead sufficient facts to make out a plausible
allegation that any “discharge” from a “point source” occurs from ARM’s
facility.4 See Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1142

ARM has not contested redressability, but for the sake of
completeness the court notes that a decision compelling ARM to seek a
permit for any currently unpermitted discharges and the resulting civil
penalties would both ensure greater protection of the Bogastow Brook and
Charles River and would have a deterrent effect on other inappropriately
unpermitted dischargers. See Powell Duffryn, 913 F.3d at 73.
3

ARM couches this argument as affecting CLF’s standing to bring suit.
After all, as ARM points out, if CLF cannot plausibly allege that ARM
discharges, then it cannot plausibly trace the harms its members have
suffered to ARM’s conduct. Cf. Me. People’s All., 471 F.3d at 284 (“[N]either
a bald assertion of . . . harm nor a purely subjective fear that an
environmental hazard may have been created is enough to ground
standing.”). The boundary between standing and the merits is not always
clear, and at times the two may “substantially overlap.” Town of Norwood,
202 F.3d at 406. To the extent there is any daylight between the concepts, it
makes no difference here. The standard applied to each type of motion is the
same, see Hochendoner, 823 F.3d at 730, and the scope of the material
properly before the court is unaffected, see infra note 5. Finally, because the
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4

(10th Cir. 2005) (to show a violation of the CWA’s permitting requirement,
“a plaintiff must prove that the defendant (1) discharged (2) a pollutant (3)
into navigable waters (4) from a point source (5) without a permit”). The
applicable standard is well known: a court must examine the factual matter
alleged in the complaint (as distinguished from its legal conclusions) to
determine whether it “allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A complaint may not merely offer “a formulaic
recitation of the elements of a cause of action” or “‘naked assertion[s]’ devoid
of ‘further factual enhancement.’” Id., quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 557 (2007).
The CWA defines the term “discharge of a pollutant” as “any addition
of any pollutant to navigable waters from any point source.” 33 U.S.C. §
1362(12)(A). ARM contends that there is no “addition” of pollutants to
Bogastow Brook from its facility. It has provided two engineering drawings
of the facility site showing that the facility is surrounded by an earthen berm,

court will dismiss this case without prejudice, the effect of the judgment is
identical. See Hochendoner, 823 F.3d at 736 (“[A] dismissal for lack of
Article III standing must operate without prejudice.”).
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including along the side of the site bordering Bogastow Brook.5 In addition,
the drawings show that the facility has a sedimentation pond which collects
water runoff within the facility.
CLF’s factual allegations about discharges are contained in two
paragraphs of the Complaint:
39. Upon information and belief, during precipitation events
and instances of snowmelt, water flows onto and over exposed
materials and accumulated pollutants at the Facility, generating
stormwater runoff associated with the Facility’s industrial
activity.
40. Upon information and belief, stormwater runoff from the
Facility has been and continues to be conveyed by the operation
of gravity via site grading, surface water channels, subsurface
hydrological connections, detention ponds, pipes, and other
conveyances to Bogastow Brook and its associated tributaries

This material is properly before the court regardless of whether this
challenge goes to standing or the merits. A court may consider materials
outside the pleadings in addressing a Rule 12(b)(1) motion, such as one to
dismiss for lack of standing. See Gonzalez v. United States, 284 F.3d 281,
288 (1st Cir. 2002). In addition, a court may consider material outside of the
complaint in considering a motion to dismiss without converting it into a
motion for summary judgment where the documents are of undisputed
authenticity, official public records, central to the plaintiff’s claim, or
sufficiently referred to in the complaint. Watterson v. Page, 987 F.2d 1, 3
(1st Cir. 1993). Here, CLF does not contend that the court cannot consider
the engineering drawings, nor does it contest their authenticity. Counsel for
CLF also stated at the hearing on this motion that she had no objection to the
court’s consideration of the drawings at the motion to dismiss stage.
5

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and wetlands and downstream receiving waters, including South
End Pond and the Charles River. . . .6
Although CLF does not specify the basis for its “information and belief” in
the Complaint, see Menard v. CSX Transp., Inc., 698 F.3d 40, 44 & n.5 (1st
Cir. 2012) (“information and belief” pleading must involve reliance on
secondhand information believed to be true, and not on “pure speculation”),
CLF offers several rejoinders to ARM’s arguments about its remediation
efforts. It points out that ARM’s documents demonstrate that the site
elevation of the lot on which the facility is located descends from 180 feet to
approximately 153 feet along Bogastow Brook, and argues that satellite
imagery obtained from Google Earth and attached to the Complaint suggests
that the width of the berm along the Brook is narrower than depicted on the
drawings.

Opp’n at 19; Compl. Ex. B.

In addition, the water in the

sedimentation pond sits approximately one foot below the height of the
berm, Def.’s Ex. B, and “[i]t is not clear, but will be clear once CLF has access
to ARM’s facility during discovery, whether the pond has an outlet or under
what conditions water discharges from the pond during heavy rain events or
periods of snow melt,” Opp’n at 19. Finally, CLF asserts that “in addition to

6 With respect to process wastewater, the Complaint

simply alleges that
“[u]pon information and belief, process wastewater from the Facility is and
has been discharged into waters of the United States.” ¶ 50.
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the pond, there are other points of discharge to Bogastow Brook, as CLF will
prove at trial.” Opp’n at 19.
These allegations, singly and collectively, are insufficient to plausibly
allege that ARM’s facility discharges into Bogastow Brook. In the absence of
the berm and sedimentation pond, CLF might make out a viable claim: the
court accepts the common-sense proposition that water flows downhill, see
generally Isaac Newton, Philosophiae Naturalis Principia Mathematica
(1687), and a complaint may cross the plausibility threshold based on
common sense, see García-Catalán v. United States, 734 F.3d 100, 103 (1st
Cir. 2013). Here, however, materials appropriately before the court plainly
demonstrate that something more than the force of gravity is required for
discharges to occur. Despite this fact, CLF acknowledges that it has no
information about discharges from the sedimentation pond, and it does not
allege facts that plausibly show that water escapes over, under, around, or
through the surrounding earthen berm.
CLF’s assertion that it will demonstrate at trial that other avenues exist
by which water reaches the Brook likewise also does not carry the Complaint
over the plausibility threshold. No factual matter is alleged beyond the
information and belief assertion that “site grading, surface water channels,
subsurface hydrological connections, detention ponds, pipes, and other
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conveyances” carry water to the Brook “by the operation of gravity.” Compl.
¶ 40.

No specific conveyances are identified.

Nor is any information

provided in the Complaint to explain why it is plausible to think that
contaminated water actually does breach ARM’s defenses and reach the
Brook through these conveyances, if they do exist. Perhaps there are good
reasons, based on hydrological principles or otherwise, to believe that water
reaches the Brook through some of these sources, but the Complaint does
not explain them. The result is that the allegations of discharge are “so
general and conclusory as to amount merely to an assertion that unspecified
facts exist to conform to the legal blueprint.” Menard, 698 F.3d at 45.
Of course, the plausibility standard is sometimes applied more flexibly
where “a material part of the information needed is likely to be within the
defendant’s control.” García-Catalán, 734 F.3d at 104. In those instances,
limited discovery may be permitted to provide a missing link. See Saldivar
v. Racine, 818 F.3d 14, 23 (1st Cir. 2016). Key to those cases, however, is the
proposition that a party could not reasonably be expected to plead sufficient
factual matter without discovery.

For example, the First Circuit has

remanded for limited discovery a case in which a man injured twice in rapid
succession on a railroad track could not be reasonably expected to ascertain
information about the defendant’s conduct between his injuries.
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See

Menard, 698 F.3d at 45. Similarly, in García-Catalán, the First Circuit
observed in a slip-and-fall case that “it cannot reasonably be expected that
the [plaintiff], without the benefit of discovery, would have any information
about either how long the liquid was on the floor or whether any employees
of the [defendant] were aware of the spill.”

734 F.3d at 104.

These

complaints created a “reasonable expectation” that discovery would reveal
evidence to fill in the gaps. Butler v. Balolia, 736 F.3d 609, 617-618 (1st Cir.
2013), quoting Twombly, 550 U.S. at 556. Here, by contrast, it is not
unreasonable to expect CLF to obtain basic information plausibly suggesting
that a discharge occurs before subjecting ARM to the burdens of discovery:
more detailed allegations explaining why it is reasonable to believe that
ARM’s defenses are ineffective, observations of discharges, or downstream
testing of pollutants, singly or in combination, might meet the challenge.
ORDER
For the foregoing reasons, ARM’s motion to dismiss (Dkt #7) is
GRANTED, and CLF’s Complaint is DISMISSED without prejudice. The
clerk is directed to enter the dismissal and close the case.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE
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