Lower Susquehanna Riverkeeper v. Keystone Protein Co.

• Decision Date: 18 February 2021
• Docket Number: Civil No. 1:19-cv-01307
• Citation: 520 F.Supp.3d 625
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: LOWER SUSQUEHANNA RIVERKEEPER and the Lower Susquehanna Riverkeeper Association, Plaintiffs, v. KEYSTONE PROTEIN COMPANY, Defendant.

520 F.Supp.3d 625

LOWER SUSQUEHANNA RIVERKEEPER and the Lower Susquehanna Riverkeeper Association, Plaintiffs,

v.KEYSTONE PROTEIN COMPANY, Defendant.

Civil No. 1:19-cv-01307

United States District Court, M.D. Pennsylvania.

Signed February 18, 2021

James M. Hecker, Pro Hac Vice, Public Justice, Washington, DC, Stephen G. Harvey, Steve Harvey LLC, Philadelphia, PA, for Plaintiffs.

Paul M. Schmidt, Aaron S. Mapes, Post & Schell, P.C., Philadelphia, PA, Erin R. Kawa, Post & Schell, P.C., Harrisburg, PA, for Defendant.

MEMORANDUM

JENNIFER P. WILSON, United States District Court Judge

This is a citizen suit under the Clean Water Act, which is the United States’ primary federal law governing water pollution. Before the court are cross motions: Plaintiffs’ motion for partial summary judgment, Doc. 32, and Defendant's motion for summary judgment, Doc. 35. For the reasons that follow, Plaintiffs’ motion will be granted in part and denied in part, and Defendant's motion will be denied.

PROCEDURAL HISTORY

Plaintiffs Lower Susquehanna Riverkeeper and the Lower Susquehanna Riverkeeper Association initiated this case by filing a complaint on July 29, 2019 against Defendant Keystone Protein Company ("Keystone"), which owns and operates a poultry rendering facility that generates industrial wastewater. (Doc. 1.) Keystone answered the complaint on August 21, 2019. (Doc. 7.) In the complaint, Plaintiffs allege that Keystone "has discharged and continues to discharge pollutants into waters of the United States in violation of" the Clean Water Act as well as "the conditions and limitations" established by a related permit system. (Doc. 1 ¶ 2.) Plaintiffs request damages as well as declaratory and injunctive relief. (Id. ¶ 1.)

Keystone filed its first motion for summary judgment on October 25, 2019. (Doc. 15.) Following a conference call on May 5, 2020, and Keystone's filing of another motion for summary judgment on May 29, 2020, the court denied Keystone's first motion as moot. (Doc. 38.) Plaintiffs filed their motion for partial summary judgment on May 29, 2020 as well. (Doc. 32.) And, finally on May 29, 2020, the parties filed a First Stipulation of the Parties, which lists a number of stipulated facts that are relevant to this litigation and, more specifically, to the cross motions before the court. (Doc. 31.)

The parties briefed their respective motions in May, June, and July 2020. (See Docs. 32–46.) Plaintiffs then supplemented the summary judgment record on February 1, 2021. (Doc. 48.) Both motions are now ripe for the court's review.

FACTUAL BACKGROUND ¹

A. Keystone's Wastewater Treatment and Nitrogen Discharges

On March 30, 2012, the Pennsylvania Department of Environmental Protection ("PADEP") re-issued NPDES Permit No. PA0080829 ("the NPDES permit") to Keystone. (Doc. 31 ¶ 1.) The NPDES permit authorized Keystone's "discharge of wastewater in accordance with certain effluent limitations and other requirements." (Doc. 36 ¶ 5.) The relevant limitations here are that the NPDES permit limited "Keystone's ... discharges of total nitrogen from" Keystone's wastewater treatment plant, "Outfall 001," "to 134 mg/l as a monthly average concentration and 194 mg/l as a daily maximum concentration." (Doc. 31 ¶ 1.) The NPDES permit remains in effect. (Id. )

Keystone admits that it has been in continuous noncompliance with its total nitrogen limits since April 1, 2012, when the NPDES permit took effect. (Doc. 33 ¶ 1.) In particular, "Keystone violated its monthly average concentration limit for total nitrogen at Outfall 001 in 66 consecutive months from October 2014 through March 2020." (Doc. 31 ¶ 12.) And "Keystone violated its daily maximum concentration limit for total nitrogen at Outfall 001 on 257 days in 66 consecutive months from October 2014 through March 2020." (Id. ¶ 13.) Further, in supplementing the record, Plaintiffs have provided evidence of "additional violations" "from April through October 2020" which "bring the total number of days of violating the daily maximum limit to 288 and the total number of months of violating the monthly average limit to 73." (Doc. 48, pp. 1–2.² )

Keystone discharges from Outfall 001 24 hours a day and seven days a week. (Doc. 33 ¶ 2.) Keystone filed reports covering October 2014 to March 2020 with PADEP. Those reports "show that Keystone discharged wastewater flow from Outfall 001 on every day during those 66 months except for the eighteen days on April 24–26, 2017, December 11–14, 2018, March 12–15, 2019, and January 11–17, 2020. The total number of days with discharges during those 66 months is 2,009 minus 18, or 1,991 days." (Doc. 33 ¶ 3.)

Keystone's wastewater treatment plant was not designed to meet, and therefore could not meet, its permit limits for total nitrogen. (Doc. 33 ¶ 4.) In 2012, Keystone's engineering consultant, Mr. John Reid, designed an upgrade to Keystone's treatment plant so that it could meet its permit limits. (Id. ) That 2012 upgrade was never built. (Id. ) In 2019, Keystone began building another upgrade to its treatment plant; this upgrade was scheduled to be finished in August 2020. (Id. )³

B. The Discharge Impairs the Chesapeake Bay

The United States Environmental Protection Association (hereinafter "the EPA") "has listed the Chesapeake Bay as impaired because of excess nitrogen, phosphorus and sediment." In 2010, the EPA "issued a Total Maximum Daily Load ("TMDL") under the [Clean Water Act] that established nitrogen, phosphorus, and sediment allocations for the Bay and the watersheds that flow into it, including the Susquehanna River watershed." (Doc. 31 ¶ 14.) "Sometime after the Chesapeake Bay TMDL was issued, [PADEP] classified Keystone as a significant discharger of nitrogen to the Chesapeake Bay." (Id. ¶ 15.) Keystone's wastewater treatment plants ultimately (after different twists, turns, and mergers) discharge nitrogen into the Chesapeake Bay. (See id. ¶ 16.)

Plaintiffs are "non-profit organizations that seek to protect the ecological integrity and water quality of the Lower Susquehanna River, its tributaries, and the Chesapeake Bay." (Id. ¶ 17.) Plaintiffs’ members Ted Evgeniades, Keith Williams and Todd Kennedy "use Swatara Creek, the Susquehanna River, and the Chesapeake Bay for recreational activities." (Id. ¶ 18.)

"The Swatara Creek, Susquehanna River, and Chesapeake Bay are downstream from Keystone's discharges. Excessive nutrients like total nitrogen can feed the growth of algae and slime in downstream waters and create oxygen-depleted dead zones in the Bay. All three members complain that they have seen these conditions and that those conditions have reduced their aesthetic and recreational enjoyment of the Creek, River, and Bay." (Id. ¶ 19.)

C. PADEP and Keystone's Consent Orders

In 2012, PADEP and Keystone entered into an administrative Consent Order and Agreement ("the 2012 consent order"). (Doc. 31 ¶ 4.) Keystone entered into the 2012 consent order "to upgrade its existing rendering plant wastewater treatment plant in order to comply with the total nitrogen limits and other parameters in its [NPDES] permit by October 1, 2016." (Doc. 36 ¶ 7.) The 2012 consent order "imposed stipulated penalties for the discharges that exceed the NPDES permit limits." (Doc. 36 ¶ 8.) Plaintiffs have had actual notice of the 2012 consent order for six years. (Doc. 31 ¶ 5.)

In 2017, PADEP and Keystone entered into a second administrative Consent Order and Agreement ("the 2017 consent order"), which superseded and replaced the 2012 consent order. (Id. ¶ 6.) The 2017 consent order "requires complete construction of a new wastewater treatment facility by June 1, 2021 so that Keystone can meet its effluent limitation guidelines, and imposes stipulated penalties for discharges exceeding Keystone's NPDES effluent limits." (Doc. 36 ¶ 12.) Plaintiffs have had actual notice of the 2017 consent order since at least March 4, 2019. (Doc. 31 ¶ 7.)

Both consent orders were negotiated and signed without any prior notice to the Plaintiffs or to the public more generally. Neither the public nor Plaintiffs had an opportunity to comment on or object to the consent orders. (Id. ¶ 8.) Plaintiffs have not filed an appeal of either consent order with the Pennsylvania Environmental Hearing Board. (Id. ¶ 9; Doc. 36 ¶¶ 10, 14.)

In 2019, Keystone entered into an amendment ("the 2019 amendment") to the 2017 consent order. (Doc. 31 ¶ 10.) The 2019 amendment "required the construction by December 31, 2020 of an interim upgrade to the existing WWTP ... so that Keystone [could] meet its [total nitrogen] limits while it [was] in the process of constructing [a new wastewater treatment facility]." The 2019 amendment "also requires that by August 21, 2021 Keystone move its discharge from the unnamed tributary of Beach Run to the Little Swatara Creek." (Doc. 36 ¶ 15.)⁴

JURISDICTION

As a general matter, this court has jurisdiction under 28 U.S.C. § 1331, which allows a district court to exercise subject matter jurisdiction in civil cases arising under the Constitution, laws, or treaties of the United States.

In this case, though, the parties raise two jurisdictional issues. First, Plaintiffs ask the court to hold that Plaintiffs have standing to bring their lawsuit. Second, Keystone asks the court to hold that the court is without jurisdiction to decide Plaintiffs’ lawsuit. According to Keystone, Plaintiffs’ lawsuit is precluded by PADEP's own enforcement action, which has been manifested through the two consent orders.

A. Standing

The parties assert that they have stipulated to the facts that provide the foundation upon which the court can base a determination that Plaintiffs have standing to bring their lawsuit. (See, e.g. , Doc. 34, pp. 7–8.) But as "standing is an Article III requirement for jurisdiction, the parties do not have the power to confer such jurisdiction upon the Court by conceding the standing of certain plaintiffs." Golden v. Gov't of Virgin Islands, Bureau of Internal Revenue , 47 F. App'x 620,...