GROUP AGAINST SMOG AND POLLUTION, INC. v. SHENANGO INCORPORATED
Filing
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ORDER granting 7 Defendant's Motion to Dismiss for Lack of Jurisdiction. This case is DISMISSED for want of jurisdiction. Signed by Judge Cathy Bissoon on 3/26/15. (dcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GROUP AGAINST SMOG AND POLLUTION,
Plaintiff,
v.
SHENANGO INCORPORATED,
Defendant.
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Civil Action No. 14-595
Judge Cathy Bissoon
MEMORANDUM AND ORDER
I. MEMORANDUM
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.
A.
Introduction
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
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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.
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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.
D.
Analysis
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 “affidavits,
depositions, and testimony” in order to resolve any factual issues bearing on jurisdiction.
Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997).
The Clean Air Act provides that “any person may commence a civil action on his own
behalf” against violators of the Act’s emission standards or limitations. 42 U.S.C. § 7604(a)(1).
However, a citizen suit may not be commenced if the EPA or the state already “has commenced
and is diligently prosecuting a civil action in a court of the United States or a State to require
compliance.” Id. § 7604(b)(1)(B). The purpose underlying the diligent prosecution provision is
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that “a defendant not be subjected simultaneously to multiple suits, and potentially to conflicting
court orders, to enforce the same statutory standards.” Conn. Fund for the Environment v.
Contract Plating Co., Inc., 631 F. Supp. 1291, 1293 (D. Conn. 1986).
In determining whether a state enforcement action qualifies as diligent prosecution, there
is a “heavy presumption” that the state’s prosecution was diligent. Environmental Integrity
Project v. Mirant Corp., 2007 WL 62619, at *1 (D. Md. Jan. 3, 2007); Friends of Milwaukee’s
Rivers v. Milwaukee Metro. Sewerage District, 382 F.3d 743, 760 (7th Cir. 2004)
(“We recognize that diligence on the part of the State is presumed.”). Indeed, “the relevant test
to determine if a state enforcement action qualifies as diligent prosecution is whether the
prosecution is totally unsatisfactory.” Citizens for Clean Power, 636 F. Supp.2d at 357 (citations
to quoted sources omitted). This heavy presumption of diligence may only be overcome by
“persuasive evidence that the state has engaged in a pattern of conduct that could be considered
dilatory, collusive, or otherwise in bad faith.” Connecticut Fund, 631 F. Supp. at 1293.
Where the prior enforcement action culminates in a settlement agreement, courts have
recognized that “[t]he choice to settle with a violator [is] within a government agency’s
discretion, even if citizens might have preferred more stringent terms than those determined by
the government to be appropriate.” Citizens for Clean Power, 636 F. Supp.2d at 357 (citations to
quoted sources omitted). As several courts have noted:
[T]he mere fact that the settlement reached in the state action was less
comprehensive than the remedy sought in the instant action is not
sufficient in itself to overcome the presumption that the state action was
diligently prosecuted. Indeed, if the question of “diligent prosecution”
were always to depend upon the outcome of the prior pending state suit,
a state suit in which the defendant prevailed or reached some
compromise with the state could never preclude a subsequent citizens’
suit in federal courts no matter how diligently the state suit had been
prosecuted.
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Clean Air Council v. Sunoco, Inc., 2003 WL 1785879, at *3 (D. Del. Apr. 2, 2003) (citation
omitted).
In the instant case, the amended complaint alleges violations of the five percent door
emissions standard set forth in Section 2105.21.b.1, and the 20 and 60 percent combustion stack
opacity standards set forth in Sections 2105.21.f.3 and 2105.21.f.4. Because each of these
standards formed the basis for a prior ACHD enforcement action, the Court’s task is to determine
whether those actions are being “diligently prosecuted.”
The five percent door emissions violations were primarily addressed by the ACHD
through the 2014 state court action that culminated in the 2014 COA. See 2014 COA (Doc. 4-6)
¶¶ 8.b, 9, 10.b, 11, 12.b, 14.b, 15.b, 16.a (alleging excess visible emissions from door areas in
violation of Section 2105.21.b.1). In reaching that settlement agreement, the ACHD
acknowledged that Shenango already had taken significant steps to reduce emissions, including
improved equipment design, revised inspection procedures, and prompt replacement of faulty
doors. Id. ¶¶ 18.c, 18.9. To correct the ongoing violations, the 2014 COA assessed $300,000 in
civil penalties, directed Shenango to spend an additional $300,000 to conduct an engineering
study (and implement improvements recommended by that study) to reduce violations, and
explicitly retained the right to assess additional penalties and corrective measures if necessary.
Id. ¶¶ V.A, VI.A, II.I-J. To monitor compliance, third-party inspectors performed 181
inspections of the coke oven doors between January 1, 2014 and June 30, 2014 pursuant to an
EPA contract managed by the ACHD. See DeLuca Affidavit (Doc. 8-4) ¶¶ 4-6. ACHD
inspectors performed an additional 92 inspections during that time period. Id.
Shenango’s violations of the 20 and 60 percent combustion stack opacity standards were
addressed by the 2012 COA. Pursuant to that agreement, Shenango paid an initial civil penalty
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of $1,750,000 and subsequent penalties of $148,500 and $28,350. Shenango also implemented a
variety of protocols designed to improve compliance including long-term repairs, monitoring,
and additional stipulated penalties. Because the 2012 COA is open-ended, the ACHD continues
to monitor emissions and assess stipulated fines for non-compliance. Indeed, the agreement
cannot be terminated until Shenango demonstrates that it has fully complied with the 20 and 60
percent opacity standards for combustion stacks. See 2012 COA (Doc. 8-1) ¶ XXI.B.1.a.
On balance, the 2012 and 2014 COAs demonstrate that the ACHD is in the process of
diligently prosecuting and enforcing the same violations alleged in the instant lawsuit. As noted
in several cases, indicia of diligence include “whether the government required (or at least
sought) compliance with the specific standard, limitation, or order invoked by the citizen suit;
whether the government was monitoring the polluter’s activities or otherwise enforcing the
permits at issue after settlement with the polluter and up to the time of the citizen suit;
the possibility that the citizen-alleged violations will continue notwithstanding the polluter’s
settlement with the government; and the severity of any penalties compared to . . . the polluter’s
economic benefits in not complying with the law.” Citizens Legal Envtl. Action Network, Inc. v.
Premium Standard Farms, Inc., 2000 WL 220464, at *13 (W.D. Mo. Feb. 23, 2000) (collecting
cases) (citations omitted). Here, the ACHD explicitly sought compliance with the same
standards at issue in the instant suit in the previous enforcement actions. In furtherance of those
standards, the ACHD imposed significant civil penalties and directed Shenango to implement
various corrective measures and structural improvements. Moreover, the ACHD continues to
monitor Shenango pursuant to those open-ended agreements (and, if necessary, impose
additional sanctions). Although GASP may have preferred “more stringent terms” than those
negotiated by the ACHD, the choice to settle with a violator (and the terms of that settlement)
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is ultimately within the discretion afforded to the government agency. See, e.g., Citizens for
Clean Power, 636 F. Supp.2d at 357.
A review of the pertinent case law supports this conclusion. For example, in Citizens for
Clean Power, the court addressed emissions violations stemming from a regulation promulgated
by the Delaware Department of Natural Resources and Environmental Control (“DNREC”) to
reduce the amount of certain pollutants in emissions from electric generating plants. Citizens for
Clean Power, 636 F. Supp.2d at 354. The defendant, a power plant, had previously entered into
a stipulated consent order with the DNREC that provided for a graduated, long-term plan to
bring the defendant’s emissions into compliance. Id. A citizen’s group challenged that
settlement agreement, asserting that it was not the product of a diligent prosecution because it
had failed to actually curtail emissions violations. Id. The group supported its contention by
noting that the defendant had violated the opacity limitations in the pertinent regulation 6,304
times in a prior four-year period. Id. at 355.
On review, the district court held that the consent order represented a diligent prosecution
of the pertinent regulation, despite that the defendant had not yet achieved total compliance. Id.
at 357. The court emphasized that the DNREC’s “wide discretion . . . to settle with alleged
violators” extended to the DNREC’s decision to enter into a settlement agreement that permitted
the defendant to achieve compliance over a period of years, rather than immediately. Id. at 357
n. 10. Other courts have reached the same conclusion. See, e.g., Clean Air Council, 2003 WL
1785879, at *5-6 (holding that a settlement agreement containing an open-ended compliance
period, provisions for monitoring, and a stipulated schedule of penalties was the product of a
diligent prosecution despite ongoing violations); Environmental Integrity Project, 2007 WL
62619, at *1-2 (holding that a settlement agreement was diligently prosecuted despite not
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requiring full compliance immediately); North & South Rivers Ass’n v. Scituate, 949 F.2d 552,
558 (1st Cir. 1991) (deeming state action to enforce an order “diligent” and noting that “[m]erely
because the State may not be taking the precise action Appellant wants it to or moving with the
alacrity Appellant desires does not entitle Appellant to injunctive relief.”).
GASP challenges this conclusion on two grounds. First, it contends that neither of the
agreements actually requires Shenango to implement measures that will eventually result in full
compliance with the CAA, rather than simply a reduction in violations. To this end, GASP relies
heavily on Friends of Milwaukee’s Rivers, 382 F.3d 743, an action based on the Clean Water
Act.1 Under the facts of that case, the state of Wisconsin and a municipal wastewater treatment
agency (“the MMSD”) entered into a settlement agreement in 1977 that required the MMSD to
construct a sewage treatment overflow tunnel known as the “Deep Tunnel” to prevent sewage
overflow from discharging into Lake Michigan and Milwaukee’s rivers. Id. at 749. Despite the
completion of the Deep Tunnel project in 1994, Milwaukee’s sewers continued to occasionally
discharge waste into rivers and lakes. Id. at 750. The plaintiff, an environmental activist group,
grew concerned about the continuing discharges and filed an enforcement action pursuant to the
Clean Water Act. Id. In response, the MMSD and the state entered into a second settlement
agreement requiring the MMSD to construct three additional tunnels. Id. at 750-51. The
plaintiff challenged the settlement by arguing, inter alia, that this remedy would not result in the
complete elimination of the illegal overflows, as the Act required. Id.
The Court of Appeals for the Seventh Circuit sided with the plaintiff, noting that,
although increasing the storage and conveyance capacity in MMSD’s system would reduce the
Like the Clean Air Act, the Clean Water Act contains a provision authorizing citizen suits,
33 U.S.C. § 1365(b)(1)(B), and a provision barring those suits when a government enforcement
action to enforce the same limitation has been commenced and is being diligently prosecuted.
See id. at § 1319(g)(6)(A)(ii).
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number and volume of overflows, it would not be enough to completely eliminate them. Id. at
763. The court based this conclusion on the failure of the first Deep Tunnel to effectuate
compliance, MMSD’s own admission that the construction of further tunnels would be unlikely
to eliminate overflows, and the extremely dilatory pace at which MMSD determined that the
original Deep Tunnel had been under-designed. Id. at 764.
Unlike in Friends of Milwaukee’s Rivers, the consent decrees in the instant case go well
beyond merely requiring a single capital improvement designed to reduce, but not eliminate,
the pollution at issue. In addition to providing penalties for both past and future violations,
the 2012 and 2014 COAs require Shenango to continuously implement protocols and make
capital improvements over of the full life of those consent decrees, each of which is still in force.
As noted by the ACHD, these requirements are “long-term, ongoing measures” specifically
designed to bring Shenango into full compliance. DeLuca Affidavit (Doc. 8-4) ¶ 9. Courts
frequently have endorsed this type of ongoing, compromise-driven measure for curing violations.
See Citizens for Clean Power, 636 F. Supp. 2d at 357-58 (concluding that an enforcement action
was diligent despite only providing an “interim solution to defendant’s alleged opacity
violations” in the short term because the long-term effect of the enforcement action was designed
to achieve complete compliance); Environmental Integrity Project, 2007 WL 62619, at *1-2
(distinguishing Friends of Milwaukee’s Rivers and concluding that an enforcement action is not
“totally unsatisfactory” simply because it does not mandate immediate compliance with
applicable regulatory standards); Scituate, 949 F.2d at 556 (finding that an administrative order
that did not expressly require compliance with a water quality standard was a diligent
prosecution).
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GASP next contends that the ACHD’s 2014 enforcement action was deficient because the
parties failed to provide an opportunity for the public to intervene or comment on the terms of
the 2014 COA. This argument was squarely rejected in Clean Air Council:
The Council first argues that the Final Judgment’s swift execution
effectively excluded its members from participating in the settlement
negotiations. However, in making this argument, it has failed to point to
any statutory or regulatory language giving citizens such a right to
participate in enforcement actions. The court concludes that this failure
is due to the fact that there is no such right. Indeed, the Clean Air Act
only provides society in general with a remedy against air pollution.
See 42 U.S.C. § 7401(b). Thus, once the State acts to achieve that result,
the Act does not authorize citizens to duplicate those efforts.
Moreover, the Council has pointed to no case invalidating a prosecution
under the Clean Air Act because citizens were excluded. Instead, the
cases upon which the Council relies involve the Federal Water Pollution
Control Act, commonly known as the Clean Water Act. This act,
however, expressly provides for public participation at various points in
enforcement proceedings. See 33 U.S.C. § 1319(g)(4); Friends of the
Earth, Inc. v. Laidlaw Env. Servs. (TOC), Inc., 890 F. Supp. 470, 490
(D.S.C.1995) (relying on the public participation provision of the Clean
Water Act); Love v. New York State Dep’t of Envtl. Conservation,
529 F. Supp. 832, 843–844 (S.D.N.Y.1981) (same). Thus, Congress has
demonstrated that it is eminently capable of explicitly providing for
public hearings when it deems them necessary. It did not do so when
enacting the Clean Air Act.
Clean Air Council, 2003 WL 1785879, at *4. Significantly, GASP relies entirely on the precise
same authorities that were adeptly distinguished in Clean Air Council. See GASP’s Brief in
Opposition (Doc. 9) at 13 n. 59. In the absence of any contrary authority, the Court agrees with
the sound analysis quoted above and reaches the same conclusion.
E.
Conclusion
On balance, the Court finds, for the reasons set forth above, that the Clean Air Act
violations alleged in the amended complaint are already being diligently prosecuted by the
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ACHD. Thus, and for all of the other reasons stated above, the Court hereby enters the
following:
II. ORDER
Defendant’s Motion to Dismiss (Doc. 7) is GRANTED, and this case is dismissed for
want of jurisdiction.
IT IS SO ORDERED.
March 26, 2015
s/ Cathy Bissoon
Cathy Bissoon
United States District Judge
cc (via ECF email notification):
All counsel of record
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