HARRISBURG – While a potential settlement is evaluated, a Pennsylvania waterway environmental group and a food processing company have continued a stay of litigation the two parties are involved in over claims of the latter polluted Oil Creek and the Susquehanna River, 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, 2021 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 2021.
Hanover Foods filed a motion to dismiss the complaint on Nov. 24, 2021, 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.”
On Jan. 28, just ahead of a joint case management conference between them on Feb. 1, the parties filed a joint motion to stay the proceedings until July 1.
“A parallel administrative matter is proceeding before the United States Environmental Protection Agency, which recently issued an Administrative Order on Consent requiring defendant to submit a complete engineering evaluation of defendant’s facility on or about April 4. In the course of the parties’ meet and confer in preparation for the joint case management conference, plaintiff and defendant agreed that defendant also will share this engineering evaluation with plaintiff at the same time that it is provided to the EPA,” the motion stated.
“The parties believe that the exchange of this engineering evaluation, and the course of the administrative proceeding before the EPA, may facilitate a settlement of the above-captioned matter. The parties therefore jointly request that the Court stay the above-captioned matter until July 1, to permit the completion and exchange of the engineering evaluation and subsequent settlement negotiations between the parties. Should this dispute not be resolved by July 1, the parties will jointly request that the stay be listed and that this matter be rescheduled for a joint case management conference to set further case management deadlines forward from that date.”
In a July 1 status report filed by the Lower Susquehanna Riverkeeper Association, it explained that more time was needed to pore over evaluations and devise an action plan.
This filing was accompanied by a joint motion to extend the stay of litigation by 60 days, up to and through Aug. 30.
“On April 1, 2022, defendant submitted the engineering evaluation of its facility to plaintiff, EPA and the Pennsylvania Department of Environmental Protection (DEP). On May 3, 2022, EPA gave defendant notice that it determined that the engineering evaluation was not complete or adequate and required defendant to submit an updated engineering evaluation within 30 days. On May 5, 2022, plaintiff submitted additional written comments to defendant regarding the engineering evaluation,” the status report said.
“On June 2, 2022, defendant submitted a revised engineering evaluation to EPA, DEP and plaintiff. The parties have scheduled a meeting, together with EPA and DEP, for July 12, 2022, to discuss the revised engineering evaluation and next steps. The parties believe that additional time is needed to determine next steps in the analysis of the engineering evaluation, work toward an approvable Corrective Action Plan (CAP) and discuss the potential for settlement.”
U.S. District Court for the Middle District of Pennsylvania Jennifer P. Wilson authorized the stay extension and ruled it would continue through Aug. 30, as the parties intended.
UPDATE
The parties mutually filed a joint status update on Nov. 28, explaining that additional time was needed to peruse documentation and consider the potential of a settlement.
“On Aug. 29, 2022, the parties moved jointly to extend the stay of proceedings in this matter until Nov. 28, 2022, to discuss the responses to the collective questions and comments, Defendant’s pending submission of a Corrective Action plan (CAP) for review and approval by EPA, and the potential for settlement. The Court granted the joint motion to extend the stay of proceedings on Aug. 30, 2022, staying the proceedings until Nov. 28, 2022, and ordering the parties to file a stipulation of dismissal or status report no later than Nov.28, 2022,” the report stated.
“Since the last joint status report was filed on Aug. 29, 2022, defendant submitted an additional analysis on Sept. 2, 2022, in response to the questions and concerns raised in the EPA’s July 20, 2022 list. On Oct. 27, 2022, EPA sent defendant further questions and comments from plaintiff, DEP and EPA. Responses are expected from defendant by Dec. 2, 2022. On Nov. 17, 2022, defendant submitted a Preventative Maintenance Plan, as required under EPA’s Administrative Order on Consent, to assist in evaluating the operation and maintenance of the defendant’s facility.”
The parties added that they believe more time is needed to review the defendant’s Preventative Maintenance Plan, the defendant’s Dec. 2, 2022 responses to questions and comments from the plaintiff, DEP and EPA, and to evaluate the potential for settlement.
As such, the parties submitted a joint motion to extend the stay of proceedings for 90 days, up to and including Feb. 27, 2023, and proposed order granting the same.
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, Jennifer Duggan and Natalia Cabrera of the Environmental Integrity Project, in Washington, D.C.
The defendant is represented by Devin J. Chwastyk, Errin Todd McCaulley Jr. and Scott A. Gould 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