520 F.Supp.3d 625
M.D. Pa.2021Background
- Keystone Protein operates a poultry-rendering plant covered by NPDES Permit PA0080829 that limits total nitrogen: 134 mg/L monthly average and 194 mg/L daily maximum.
- Keystone admitted continuous noncompliance with total-nitrogen limits since April 1, 2012; record shows 288 days violating the daily maximum and 73 months violating the monthly average (through Oct. 2020).
- Discharges from Outfall 001 flow to an unnamed tributary → Little Swatara Creek → Susquehanna River → Chesapeake Bay, which is listed impaired for excess nitrogen; plaintiffs are local Riverkeeper organizations with members who use and enjoy those waters.
- PADEP entered two consent orders with Keystone (2012 and 2017) and a 2019 amendment requiring upgrades and relocation of the discharge; the consent orders were negotiated without prior public notice or comment.
- Procedural posture: citizen suit under Clean Water Act § 505; cross-motions for summary judgment — court grants plaintiffs’ motion in part, denies it in part, and denies defendant’s motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Article III and § 505) | Plaintiffs: their members’ recreational/aesthetic injuries from nitrogen discharges are concrete, traceable, and redressable; association has associational standing | Keystone: parties stipulated facts but court must independently decide standing | Court: Plaintiffs and association have standing; partial SJ granted on standing |
| Preclusion under 33 U.S.C. § 1319(g)(6) (state enforcement bars citizen suit if state law is "comparable") | Plaintiffs: PADEP consent orders do not preclude suit because PA Clean Streams Law is not comparable (lacks pre-enforcement public participation) | Keystone: PADEP has commenced and is diligently prosecuting via consent orders under state law comparable to CWA | Court: Adopted "rough comparability" standard; Clean Streams Law fails comparability (public participation lacking); citizen suit not precluded; Keystone’s SJ denied |
| Liability for number of violating days (daily max vs monthly average) | Plaintiffs: seek judgment on total violating days and months | Keystone: raises defenses and mitigation arguments for penalty phase | Court: Found undisputed 288 days of daily-maximum violations — grants SJ as to those days; defers determination on monthly-average violation days to penalty phase |
| Civil-penalty calculation and scope (maximum penalty) | Plaintiffs: asked for SJ on maximum penalty (raised in reply) | Keystone: will contest penalty factors and mitigation at penalty phase | Court: Declined to decide penalty amount now; will resolve at penalty phase with full briefing |
Key Cases Cited
- Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167 (2000) (standing requires injury-in-fact, traceability, redressability)
- Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977) (associational standing test)
- Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64 (3d Cir. 1990) (traceability framework in CWA citizen suits)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987) (citizen suits supplement government enforcement)
- United States v. Allegheny Ludlum Corp., 366 F.3d 164 (3d Cir. 2004) (strict liability for permit violations; distinction between daily and monthly limits for penalty assessment)
- McAbee v. City of Fort Payne, 318 F.3d 1248 (11th Cir. 2003) (rejecting post-decision-only participation; endorsing rough-comparability focus on penalty/public participation/judicial review)
- Paper, Allied-Industrial, Chemical & Energy Workers Int’l Union v. Continental Carbon Co., 428 F.3d 1285 (10th Cir. 2005) (adopts rough-comparability approach for § 1319(g)(6))
- Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376 (8th Cir. 1994) (overall-comparability standard discussion)