Pennenv't v. Genon Ne. Managemen Co.

• Decision Date: 21 March 2011
• Docket Number: Civil Action No. 07-475
• Parties: PENNENVIRONMENT and SIERRA CLUB, Plaintiffs, v. GENON NORTHEAST MANAGEMEN COMPANY, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

PENNENVIRONMENT and SIERRA CLUB, Plaintiffs,

v.GENON NORTHEAST MANAGEMEN COMPANY, Defendant.

Civil Action No. 07-475

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: March 21, 2011

MEMORANDUM AND ORDER

MITCHELL, Magistrate Judge

Plaintiffs commenced this citizen suit against defendantGenOn Northeast Management Company("GenOn"), ¹ in an effort to secure GenOn's compliance with the Clean Water Act("CWA"), 33 U.S.C. §§ 1251, et seq, and the Pennsylvania Clean Streams Law ("PCSL"), 35 Pa. C.S. §§ 691.1, et seq.Plaintiffs allege that GenOn has been discharging illegal levels of at least five different metals into the Conemaugh River from Outfalls 003 and 007 at its Conemaugh Generating Station ("CGS") in West Wheatfield Township, Pennsylvania, in violation of its wastewater discharge limits.

I.Background

It is undisputed that GenOn discharges industrial wastewater into the Conemaugh River and, consequently, that it is subject to the National Pollutant Discharge Elimination System("NPDES"), a federal program established in section 402 of the CWA, 33 U.S.C. § 1342, to regulate the discharge of such pollutants.It is also undisputed that the Pennsylvania Department of Environmental Protection("PADEP"), administers the NPDES in Pennsylvania, and that on December 27, 2001, the PADEP approved GenOn's renewal application for a NPDES Permit, authorizing GenOn's CGS to release wastewater into the Conemaugh River subject to certain effluent standards and limitations and monitoring requirements.ECFNo. 97-3.The 2001 Permit was to become effective on February 1, 2002, and was to expire on December 27, 2006.Id.

On January 31, 2002, GenOn filed an appeal with the Pennsylvania Environmental Hearing Board("PAEHB"), challenging some of the 2001 Permit requirements.On December 28, 2004, GenOn and the PADEP entered into a Consent Order and Agreement ("COA"), settling the appeal.ECFNos. 98-4; 99-1.Amongst other things, the COA modified the compliance schedule set forth in the 2001 Permit giving GenOn until February 1, 2011 to comply with the final water-quality based effluent limitations ("WQBELs") listed in the COA.In addition, the PADEP was required to publish an amendment to the 2001 Permit in the Pennsylvania Bulletin and, after time for review and comment, issue an amended permit incorporating the terms and conditions set forth in the COA.The proposed amendment was, in fact, published in the Pennsylvania Bulletin on December 18, 2004, and on January 31, 2005, an amended permit was issued.ECFNos. 98-5; 98-2.Since that time, according to GenOn, it has been performing studies and collecting data in order to assess potential treatment technologies and support the development of proposed revised effluent limitations.ECF No. 106, pp. 4-6.

Nevertheless, on February 6, 2007, Plaintiffs submitted a notice of intent to sue to GenOn, the PADEP and the Environmental Protection Agency("EPA") in accordance with section 505 of the CWA, 33 U.S.C. § 1365, and commenced the instant action on April 10, 2007.In the interim, on April 5, 2007, the PADEP filed a civil action against GenOn under the PCSL in the Court of Common Pleas of Indiana County, Pennsylvania, alleging that between February of 2002 and October of 2006, GenOn was discharging wastewater into the Conemaugh River contrary to the CWA and/or the terms and conditions of the 2001 Permit.Amongst other things, the PADEP asked the court for injunctive relief and to assess civil penalties against GenOn. ECF No. 100-6.On May 3, 2007, pursuant to a joint motion filed by the parties, an order staying all proceedings in this case was entered to allow the parties to explore settlement; it appears undisputed that a similar order was also entered in the state court action.ECF Nos. 15; 100-7.Although settlement discussions ultimately proved unsuccessful, the PADEP nevertheless withdrew the state action on October 1, 2008.ECF No. 100-8.The stay of proceedings entered by this Court was lifted on November 25, 2008.ECF No. 27.

On March 13, 2009, GenOn filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) arguing that Plaintiffs' citizen suit is barred under section 309(g)(6) of the CWA and that Plaintiffs lack standing.ECF No. 34.In a Memorandum Opinion issued on December 18, 2009, the Court rejected GenOn's argument that Plaintiffs' suit was barred under the CWA but nevertheless granted GenOn's motion finding that Plaintiffs are without standing to pursue this action.ECF No. 51.Plaintiffs subsequently filed a motion for reconsideration of that finding arguing that the Court misapplied the standard applicable to 12(b)(1) motions and that, had the proper standardbeen utilized, the Court would have concluded that Plaintiffs had standing and that the Court had jurisdiction over the matter.The Court was persuaded by Plaintiffs' argument and, consequently, vacated its December 22, 2010 Memorandum Opinion and issued an amended Memorandum Opinion on October 8, 2010, denying GenOn's motion to dismiss.ECF No. 81.

Plaintiffs filed a motion for partial summary judgment on December 15, 2010, which is presently before the Court.ECF No. 94.

II.Standard of Review

Summary judgment is warranted only where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law."Fed. R. Civ. P. 56(c).The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party's case.Celotex Corporation v. Catrett, 477 U.S. 317, 322(1986).SeeConoshenti v. Public Service Electric & Gas Company, 364 F.3d 135, 140(3d Cir.2004).When the moving party has met this burden, the burden then shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."Fed. R. Civ. P. 56(e)(2).The mere existence of some evidence favoring the non-moving party, however, will not defeat the motion.There must be enough evidence with respect to a particular issue to enable a reasonable jury to find in favor of the non-moving party.Anderson v. Liberty Lobby, 477 U.S. 242, 248(1986).SeeMcGreevy v. Stroup, 413 F.3d 359, 363-64(3d Cir.2005).In evaluating the evidence at the summary judgment stage, the court must view the facts in the light most favorableto the non-moving party and draw all reasonable inferences in its favor.Matreale v. New Jersey Dept. of Military & Veterans Affairs, 487 F.3d 150, 152(3d Cir.2007).

III.Discussion

Plaintiffs have filed a motion seeking summary judgment solely on the issue of liability.Plaintiffs argue that because the evidence establishes that the Court has subject matter jurisdiction, that they continue to have standing to pursue the matter, and that GenOn continues to discharge wastewater into the Conemaugh River in excess of its 2001 Permit levels, it is strictly liable under the CWA.

With respect to this Court's subject matter jurisdiction, the CWA provides that:

Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf... who is alleged to be in violation of... an effluent standard of limitation under this chapter....

The district courts shall have jurisdiction... to enforce such an effluent standard or limitation... and to apply any appropriate civil penalties under section 1319(d) of this title.

33 U.S.C. § 1365(a).Under subsection (b):

No action may be commenced...

(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right33 U.S.C. § 1365(b).Plaintiffs contend, and GenOn does not dispute, that it is properly considered a "person" under the CWA and that the violations at issue, i.e., violations of a NPDES permit, fall within the ambit of the citizen's suit provision.Nor does GenOn dispute that Plaintiffs provided the requisite notice to GenOn, the EPA and the DEP more than 60 days before they commenced this action, see33 U.S.C. §§ 1362(5),1365(f), or that neither the EPA nor the DEP is "diligently prosecuting" an action in a court of the United States or a State to require GenOn's compliance with the 2001 Permit.Thus, it appears clear, that section (b) does not bar the instant suit or serve to deprive this Court of jurisdiction.SeeProffitt v. Rohm & Haas, 850 F.2d 1007, 1011(3d Cir.1988)(finding that the plaintiff's action satisfies the statutory prerequisites because the requisite sixty-day notice was sent and neither the EPA nor Pennsylvania were diligently prosecuting an action in court).

GenOn nevertheless reiterates its argument that Plaintiffs' citizens suit is barred under 33 U.S.C. § 1319 (g)(6)(A)(ii), which precludes a citizen's suit from going forward where "a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection."GenOn argues that because the DEP has been diligently working with it to come into compliance with the Permit limitations, as evidenced by the COA, that section 309(g)(6) applies and deprives this Court of jurisdiction.

GenOn's argument, however, has already been fully analyzed and rejected by the Court.SeeECF Nos. 81, pp. 6-18; 91, p. 3.Specifically, this Court has found that, by its plain language, section 1319(g)(6)(A)(ii) precludes citizen suits when the state has commenced and is diligently prosecuting an action...