Moss v. Sal Lapio, Inc.

• Citation: 467 F.Supp.3d 259
• Decision Date: 15 June 2020
• Docket Number: CIVIL ACTION NO. 19-3210
• Parties: Michael D. MOSS, Plaintiff, v. SAL LAPIO, INC., doing business as "Sal Lapio Homes," and Schlouch, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

467 F.Supp.3d 259

Michael D. MOSS, Plaintiff,

v.SAL LAPIO, INC., doing business as "Sal Lapio Homes," and Schlouch, Inc., Defendants.

CIVIL ACTION NO. 19-3210

United States District Court, E.D. Pennsylvania.

Signed June 15, 2020

Filed June 16, 2020

Timothy J. Bergere, Bianca Angilletta Valcarce, Armstrong Teasdale LLP, Dylan F. Henry, Montgomery McCracken Walker & Rhoads LLP, Philadelphia, PA, for Plaintiff.

Graham R. Bickel, Steven A. Hann, Hamburg Rubin Mullin Maxwell & Lupin PC, Lansdale, PA, for Defendant Sal Lapio, Inc.

Ronald L. Williams, Christopher M. Lambe, Fox Rothschild, LLP, Exton, PA, Philip L. Hinerman, Fox Rothschild LLP, Philadelphia, PA, for Defendant Schlouch, Inc.

MEMORANDUM

DuBois, J.

I. INTRODUCTION

This is a citizen suit brought by plaintiff, Michael Moss, under the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), 33 U.S.C. § 1251 et seq. , and the Pennsylvania Clean Streams Law ("CSL"), 35 P.S. § 691.1 et seq. , against defendants, Sal Lapio, Inc., d/b/a Sal Lapio Homes ("Lapio"), and Schlouch, Inc. ("Schlouch") for unauthorized discharge of pollutants into waters of the United States. Presently before the Court are defendants’ motions to dismiss. For the reasons set forth below, defendants’ motions are denied.

II. BACKGROUND

The facts below are drawn from plaintiff's Complaint. The Court construes the Complaint in the light most favorable to plaintiff, as it must in ruling on a motion to dismiss.

A. Factual Background

Plaintiff, Michael D. Moss, is a resident of Nockamixon Township, Bucks County, Pennsylvania. Compl. ¶ 8. A portion of Rapp Creek and its tributaries run across plaintiff's property. Id. Portions of his property abut a residential housing development known as "Harrow Manor." Id. Defendants Lapio and Schlouch are co-developers of Harrow Manor. Id. ¶ 1.

Lapio was the original developer of the Harrow Manor project. Id. ¶ 11. Lapio was also the original recipient of the National Pollutant Discharge Elimination System ("NPDES") Permit (the "Permit") authorizing the discharge of stormwater associated with its construction activities at the Harrow Manor project. Id. ¶¶ 12, 36. Lapio obtained the Permit in February of 2008. Id. ¶ 39. The Permit, inter alia , required the establishment of riparian buffers and the installation of erosion and sedimentation ("E&S") controls before commencing earth disturbance activities, prohibited earth disturbance within designated riparian buffers, and required areas affected by earth disturbance activities to be promptly stabilized to minimize the potential for erosion. Id. ¶ 42. Plaintiff alleges that the Permit did not authorize the discharge of sediment to Rapp Creek and its tributaries. Id.

Schlouch became a co-developer and co-permittee on the Permit in December of 2018. Id. ¶¶ 12, 36, 40. The Permit was most recently renewed on March 18, 2019. Id. ¶ 41. Plaintiff claims that on March 19, 2019 defendants commenced earth disturbance activities without first installing E&S controls as required by the Permit.

Id. ¶ 43. Defendants’ activities also allegedly disturbed ground within designated riparian buffers in violation of the Permit. Id. ¶ 44. According to plaintiff, not all of the disturbed areas within the riparian buffers have been stabilized or restored to prevent silt and sediment-laden stormwater runoff from continuing to enter Rapp Creek and its tributaries. Id. ¶ 45.

The Complaint states that defendants’ earth disturbance activities resulted in multiple discharges of silt- and sediment-laden stormwater into two of Rapp Creek's tributaries. Id. ¶ 46. Discharges allegedly occurred on March 26, 27, and 28, and April 1, 10, 11, and 15 of 2019. Id. According to plaintiff, the "silt, sediment, stones, leaves and other forest debris washed into Rapp Creek and/or its tributaries due to the uncontrolled stormwater discharges from Harrow Manor have not been removed and continue to pollute, impair and occupy portion of the tributaries to Rapp Creek." Id. ¶ 49. Additionally, plaintiff states that a large piece of corrugated pipe from the Harrow Manor development washed into a tributary of Rapp Creek on plaintiff's property. Id. ¶ 50.

B. Procedural Background

On March 25, 2019, plaintiff sent a notice of intent to sue Lapio for violations of the CWA and CSL. Compl. ¶ 5. On March 29, 2019, plaintiff sent a notice of intent to commence a citizen suit to Lapio, Schlouch, the Administrator of the United States Environmental Protection Agency ("EPA"), the Regional Administrator for the EPA Region III Office, and the Secretary of the Pennsylvania Department of Environmental Protection ("DEP"). Id.

Plaintiff filed the Complaint on July 23, 2019—more than 60 days since Notice was provided as required by the CWA and CSL. See 33 U.S.C. § 1365(b)(l)(A) ; 35 P.S. § 691.601(e). In the Complaint, plaintiff seeks a declaration that defendants violated and continue to violate the CWA and CSL, an injunction preventing defendants from continuing to violate the CWA and CSL or an order requiring defendants to prepare and implement a corrective action plan if violations cannot immediately be corrected, an assessment of civil penalties against defendants, and an award of costs and fees. Compl. at 13.

Lapio and Schlouch filed motions to dismiss on November 15, 2019 (Document Nos. 12, 13). Plaintiff responded on November 29, 2019. The motions are thus ripe for decision.

III. LEGAL STANDARD

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for "lack of jurisdiction over the subject matter" of a case. The plaintiff has the burden of establishing subject matter jurisdiction. See Carpet Group Int'l v. Oriental Rug Imp. Ass'n , 227 F.3d 62, 69 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977) ). "Without jurisdiction the court cannot proceed at all in any case." Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citation omitted).

In evaluating a Rule 12(b)(1) motion, the Court must first determine whether the motion "presents a ‘facial’ attack or a ‘factual’ attack." Long v. Se. Pa. Transp. Auth. , 903 F.3d 312, 320 (3d Cir. 2018). A facial attack "considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court." Id. When ruling on a facial attack, the Court "considers only the complaint, viewing it in the light most favorable to the plaintiff." Id. By contrast, a factual attack is an argument that challenges the "factual allegations underlying the complaint's assertion of jurisdiction, either through the filing of an answer or ‘otherwise presenting competing facts.’ " Davis v. Wells Fargo , 824 F.3d 333, 346 (3d Cir. 2016). When ruling on a factual attack, the Court weighs the evidence and must satisfy itself as to the existence of its power to hear the case. Id.

Defendant Lapio presents a factual attack on this Court's subject-matter jurisdiction by attaching to its Motion a Consent Assessment of Civil Penalty entered into between defendants and the DEP in May of 2019 and an Earth Disturbance Inspection Report issued by the DEP in August of 2019. Def. Lapio's Mot. Dismiss Ex. B, C. Lapio contends that these documents show that its violations of the CWA and CSL have been remedied and are "wholly past." Id. at 7-8. Defendant Schlouch also presents a factual attack on the Court's subject matter jurisdiction by invoking § 1319(g)(6)(A) of the CWA, which precludes citizen suits for civil penalties where the state has commenced an enforcement action.¹ See PennEnvironment v. RRI Energy Ne. Mgmt. Co. , 744 F. Supp. 2d 466, 469 (W.D. Pa. 2010).

B. Rule 12(b)(6)

The purpose of a 12(b)(6) motion to dismiss is to test the legal sufficiency of the complaint. Liou v. Le Reve Rittenhouse Spa, LLC , No. CV 18-5279, 2019 WL 1405846, at *2 (E.D. Pa. Mar. 28, 2019) (DuBois, J.). To survive a motion to dismiss, a plaintiff must allege "sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937. In assessing the plausibility of a plaintiff's claims, a district court first identifies those allegations that constitute nothing more than mere "legal conclusions" or "naked assertion[s]." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557, 564, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Such allegations are "not entitled to the assumption of truth." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. The Court then assesses "the ‘nub’ of the plaintiff[’s] complaint—the well-pleaded, nonconclusory factual allegation[s]"—to determine whether it states a plausible claim for relief. Id. at 680, 129 S.Ct. 1937. "In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick , 605 F.3d 223, 230 (3d Cir. 2010).

IV. DISCUSSION

A. Defendant Lapio's Motion to Dismiss

Defendant Lapio contends that plaintiff's Complaint must be dismissed because (1) the Court lacks jurisdiction under the CWA because all alleged violations are "wholly past," and (2) plaintiff fails to state a claim because DEP, acting through the Bucks County Conservation District ("BCCD"), has already taken an enforcement action against defendants and defendants have remedied all alleged violations. Def. Lapio's Mot. Dismiss 5-6. The Court addresses each argument in turn.

i. Allegations of Continuing Violations

Defendant Lapio argues that plaintiff's Complaint alleges only "wholly past violations" of the CWA and must...