Sierra Club v. Con-Strux, LLC
911 F.3d 85
2d Cir.2018Background
- Construx, LLC operates a Lindenhurst, NY facility that accepts demolished concrete, asphalt, brick, and other construction material, crushes/processes those materials, and wholesales the resulting aggregate.
- Sierra Club alleged Construx's recycling and crushing activities generate pollutants exposed to stormwater runoff and that Construx lacks the required NPDES permit under the Clean Water Act (CWA).
- EPA regulations require NPDES permits for "discharge associated with industrial activity," and list categories of facilities considered "industrial activity," including recyclers under SIC 5093 ("Scrap and Waste Materials").
- Construx argued its operations are properly classified under SIC 5032 ("Brick, Stone, and Related Construction Materials"), a category not included among EPA's listed industrial activities, so it is not subject to the CWA permitting requirement.
- The magistrate judge granted Construx's Rule 12(b)(6) motion, concluding SIC 5032 was the better fit and dismissing Sierra Club's complaint.
- The Second Circuit reviewed de novo and concluded the complaint plausibly alleged Construx engaged in SIC 5093 activities (recycling scrap/waste), so dismissal was improper; the case was vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Construx's operations constitute "industrial activity" under the CWA (SIC 5093) requiring an NPDES permit | Construx processes construction debris and waste (recycling/sorting/breaking) and thus falls within SIC 5093 recyclers covered by the CWA | Construx primarily wholesales aggregate from uncontaminated construction materials, fitting SIC 5032 which is not listed as "industrial activity" | At pleading stage, allegations are sufficient that Construx engages in SIC 5093 activity; complaint may not be dismissed on 12(b)(6) grounds |
| Whether a facility must be classified exclusively in one SIC code for CWA coverage | Sierra Club: multiple applicable classifications can coexist; recycling aspect triggers coverage | Construx: facility more properly classified under SIC 5032, excluding CWA coverage | Court: SIC classification is not an exclusive either-or; having a better fit in 5032 does not preclude also fitting 5093 |
| Whether the generic "Scrap and waste materials–wholesale" category in SIC 5093 can cover construction debris recycling | Sierra Club: the catch-all phrasing plainly includes construction debris recycling | Construx: SIC 5093 examples don’t specifically list construction aggregate; 5032 is specific | Court: generic category is broad enough; limiting it would render the catch-all superfluous |
| Appropriateness of Rule 12(b)(6) dismissal given factual allegations | Sierra Club: facts alleged require factual development, not dismissal | Construx: pleadings show its primary business aligns with non-covered SIC 5032 | Court: dismissal was improper; facts must be assumed true and permit coverage may apply pending further proceedings |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (standard for pleading plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must be plausible on its face)
- L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2d Cir. 2011) (complaint may include integral documents)
- Sira v. Morton, 380 F.3d 57 (2d Cir. 2004) (documents integral to complaint may be considered)
- Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561 (2d Cir. 2016) (de novo review of 12(b)(6))
- State St. Bank & Trust Co. v. Salovaara, 326 F.3d 130 (2d Cir. 2003) (avoid interpretations rendering statutory language superfluous)
- Duncan v. Walker, 533 U.S. 167 (canon against rendering statutory provisions superfluous)