HARRISBURG – A food processing company seeks to dismiss litigation brought against it by a Pennsylvania waterway environmental group that charges it with having polluted Oil Creek and the Susquehanna River and violating the state Clean Streams Law and the federal Clean Water Act in the process.
Lower Susquehanna Riverkeeper Association of Wrightsville first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Sept. 24 versus Hanover Foods Corporation, of Hanover.
“Defendant has discharged, and continues to discharge, through Outfall 001, industrial wastewater containing pollutants at levels that exceed effluent limitations into Oil Creek, a tributary to Codorus Creek, which flows into the Susquehanna River. Defendant has discharged and, upon information and belief, continues to discharge, substances that result in observed deposits in Oil Creek and substances that produce an observed change in the color and turbidity of Oil Creek,” the suit said.
“Defendant’s discharges of pollutants through Outfall 001 to Oil Creek in excess of the 2015 National Pollutant Discharge Elimination System Permit effluent limits and failures to comply with other permit limits and conditions violate the 2015 NPDES Permit and also constitute violations of the CWA and the CSL.”
The suit said the defendant has discharged and continues to discharge pollutants in violation of the numeric limitations contained in the 2015 NPDES Permit and is failing to adhere to other permit conditions and limitations, in violation of the CWA and the CSL.
The plaintiff said in July that Hanover Foods had violated state Department of Environmental Protection rules in the past.
Hanover Foods was subject to a 2013 consent order agreement with a civil penalty of $20,000, per filings from the state DEP. The company also paid $1,600 to fully resolve fecal coliform effluent violations from May 1, 2016, through Sept. 30, 2016.
In 2017, Hanover Foods entered into a consent order agreement with the state DEP after an inspection determined that the company started construction of a new wastewater facility without permit authorization and fined the company $6,200.
Before facing suit from the plaintiff, Hanover Foods was served with a letter of intent to sue and was given 60 days to respond, beginning in July.
UPDATE
Hanover Foods filed a motion to dismiss the complaint on Nov. 24, arguing that the complaint lacked subject matter jurisdiction and failed to state a claim upon which relief could be granted.
Specifically, the defendant requests: (1) Dismissal of the complaint in its entirety because plaintiff Lower Susquehanna Riverkeeper Association failed to adequately allege Article III standing, including by failing to identify any individual member in its generalized allegations about its “members” for purposes of associational standing; and (2) Dismissal of Count VI because (a) the count fails to state a claim upon which relief can be granted and (b) plaintiff has failed to allege facts sufficient for standing for Count VI.
Count VI alleged that Hanover Foods violated its 2016 and 2021 Pre-Treatment Permits issued by Penn Township, which relates to wastewater sent to the Penn Township WWTP, and then treated and discharged by the Township to Oil Creek at the Township Outfall upstream.
“Plaintiff has wholly failed to allege that one of its named members has standing to sue in his/her own right, so plaintiff lacks associational standing on the face of the complaint. Plaintiff recites conclusory allegations using the three-part associational standing analysis under Laidlaw, which is insufficient as a matter of pleading. Plaintiff makes no attempt to identify even a single member of plaintiff’s organization who has suffered the harm alleged in the complaint, instead referring to anonymous ‘members,” the dismissal motion read.
“To allow plaintiff to assert associational standing in this manner and survive a motion to dismiss would run counter to the Federal Rules of Civil Procedure because plaintiff would ‘avoid showing an individual member’s standing at the pleading stage,’ shifting the analysis to summary judgment and permitting plaintiff to proceed with discovery without first making the threshold showing of standing under Article III.”
The company additionally argued that the plaintiff “failed to plead any facts that HFC’s wastewater sent to Penn Township for treatment actually caused problems at the Penn Township WWTP, caused Penn Township to violate its own NPDES permit for the Penn Township WWTP, or caused any harm from the Township Outfall to Oil Creek.”
For violations of effluent concentration limitations, effluent load limitations, temperature effluent limitations and failure to properly operate and maintain facilities of the 2015 NPDES permit, unauthorized discharge of substances, violations of effluent load limitations and flow limitations of the 2016 pre-treatment permit and flow limitations of the 2021 pre-treatment permit, the plaintiff is seeking the following reliefs:
• A declaration that the defendant is in violation of its permits, the CWA, and the CSL;
• Enjoining the defendant from further violating its permits, the CWA, and the CSL;
• Ordering the defendant to assess and remediate the harm caused by its violations;
• Assessing civil penalties against the defendant;
• Awarding the plaintiff the cost of litigation, including reasonable attorney’s fees, costs, and expert fees and expenses, including future oversight costs;
• Retaining jurisdiction to ensure compliance with the Court’s decree; and
• Granting such other relief as the Court deems just and proper.
The plaintiff is represented by Lisa Widawsky Hallowell and Natalia Cabrera of the Environmental Integrity Project, in Washington, D.C.
The defendant is represented by Devin J. Chwastyk and Stephen J. Matzura of McNees Wallace & Nurick, in Harrisburg.
U.S. District Court for the Middle District of Pennsylvania case 1:21-cv-01600
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com