Pioneer Aggregates, Inc. v. Pa. Dep't of Envtl. Prot.
| Decision Date | 21 September 2012 |
| Docket Number | 3:11-cv-00325 |
| Parties | PIONEER AGGREGATES, Inc., and THE FAMOUS BRANDS, Inc., d/b/a SIMPSON SOLUTIONS Plaintiffs v. THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al. Defendants |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE MARIANI)
Presently before the Court is a motion to dismiss Counts I through VII of Plaintiffs' Complaint (Doc. 9) filed by Defendants Pennsylvania Department of Environmental Protection ("PADEP"), John Hanger, Keith Brady, Thomas Callaghan, Nathan Houtz, Michael Menghini and Michael Kutney (collectively "Defendants") pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of jurisdiction and for failure to state a claim upon which relief may be granted. Plaintiffs Pioneer Aggregates, Inc. ("Pioneer") and The Famous Brands, Inc., d/b/a Simpson Solutions' (collectively "Plaintiffs"), allege multiple violations of their Constitutional rights as well as violations of various state and federal statutes and seek damages, attorney's fees, costs, and declaratory relief.
This matter is properly before the Court based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331.
The Court will accept as true all of the well-pleaded facts in Plaintiffs' Complaint, drawing all reasonable inferences in favor of Plaintiffs as the non-moving parties. The pertinent facts are as follows:
Since 1991, Pioneer has operated a noncoal quarry mine in Laflin, Pennsylvania where it produces crushed stone-type material. (Pls.' Compl. at ¶¶ 85-86.) As part of its mining activities, Pioneer is required to obtain various permits from the PADEP and/or its Bureau of Mining. (Pls.' Compl. at ¶ 12.) In 2007, the Bureau of Mining issued Pioneer a revised permit to change its existing Surface Mining Permit ("SMP") to a noncoal permit with an option for reclamation of the mine utilizing clean fill on the condition that such clean fill follow the Bureau of Mining guidelines ("Clean Fill Approval Condition"). (Pls.' Compl. at¶¶ 87-89.)
Operating under a joint venture with Simpson Solutions ("Simpson"), Pioneer and Simpson spent substantial sums to identify, secure, transport, and accept clean fill in anticipation of reclaiming the Laflin facility. (Pls.' Compl. at ¶¶ 94 and 97.) Sometime prior to September 2008, Pioneer and Simpson identified the Manhattan-based Willis Avenue Bridge Project ("WABP") as a source for clean fill on "an enormous scale." (Pls.' Compl. at¶¶ 98 and 99.) In preparation for submitting a minor SMP revision application ("Source Approval Request") with the Bureau of Mining, Pioneer began testing on the proposed WABP fill to demonstrate that it constituted "clean fill* pursuant to the Clean Fill Approval Condition. (Pls.' Cornpl. at ¶¶ 100and 103.)
Pioneer submitted its Source Approval Request including the analytical data and test results from the WABP fill which allegedly demonstrated that the fill was clean and thus appropriate for mining reclamation. (Pls.' Compl. at ¶ 105.) In doing so, Pioneer relied on the requirements of the Bureau of Waste's "Waste Clean Fill" policy because it was the only PADEP clean fill definition Pioneer knew existed. (Pls.' Compl. at ¶ 104.) Under this policy, users of clean fill need to file a certification that the material has been determined to be "clean fill" and retain documentation of test results demonstrating the fill is clean, if testing was required. (Pls.' Cornpl. at ¶ 73.)
Defendants' asserted standard for determining whether material constitutes "clean fill" is different and documented in Draft Technical Guidance No. 563-2000-301, titled, "Use of Mine Reclamation Clean Fill at Active Mine Sites" ("Mining Clean Fill Standard"). (Pls.' Compl. at ¶41.) The Mining Clean Fill Standard defines "clean fill" as:
Uncontarninated, non-water soluble, non-decomposable inert solid material obtained from an off-site source and used by the operator as fill material when performing reclamation at an active mine site .... "Uncontaminated," as used here, means that the fill material does not contain regulated substances in concentrations exceeding the concentration levels specified in Tables 1 and 2... (Pls.' Compl. at ¶43.)
Also included within the document are parameters and requirements whose application is contingent on whether the clean fill sought is for incidental mine reclamation or standard mine reclamation. For example, "Incidental Mine Reclamation Clean Fill' may not originate from an out-of-state source because of PADEP's limited ability to inspect and evaluate out-of-state areas" while "Standard Mine Reclamation Fill" may only use materials listed as acceptable and depends on whether the fill is placed "above the groundwater table or below the groundwater table."1 (Pls.' Compl. at ¶ 44.)
Plaintiffs assert that the Mining Clean Fill standard has never been promulgated and approved as a regulation nor has it ever been submitted to the Legislative Reference Bureau for filing and publication in the Pennsylvania Bulletin and Pennsylvania Code. (Pls.' Compl. at ¶¶ 45 and 46.) Furthermore, Plaintiffs allege that Defendants rely upon the Mining Clean Fill standard when granting or denying permit applications despite the fact that it has never been developed, approved, and/or distributed pursuant to PADEP's Policy for Development and Publication of Technical Guidance. (Pls.' Compl. at ¶¶ 47 and 48.)
After determining that Pioneer's Source Approval Request was complete, Environmental Group Manager Nathan Houtz assigned it to permit reviewer Michael Kutney for review. (Pls.' Compl. at ¶ 106.) On November 26, 2008, Kutney sent Pioneer a letter that identified purported "technical deficiencies" in Pioneer's request and asked Pioneer toprovide additional information including "PID readings" and a "map showing locations and depths for each individual grab sample." (Pls.' Compl. at ¶¶ 111-113.) Kutney later admitted that he was unsure whether this information was required by the Mining Clean Fill standard. (Pls.' Compl. at ¶ 114.) Sometime thereafter, PADEP's Kutney, Houtz, and Thomas Callahan reviewed the Source Approval Request and decided that it should be denied. (Pls.' Compl. at ¶¶ 119 and 120.) Houtz notified Pioneer about its denial in a letter stating that the soil and groundwater at the WABP was "extensively contaminated with metals and petroleum hydrocarbons" and there was no way to prove with any real certainty that the fill was uncontaminated. (Pls.' Compl. at ¶ 122.)
Pioneer submitted additional reports to Defendants reflecting that the WABP clean fill complied even with the non-binding draft standard. (Pls.' Compl. at ¶ 135.) Plaintiffs assert that the WABP fill was clean by the Mining Clean Fill standard and that Defendants based their decision not on the WABP fill, but on material near the fill site as having possibly contaminated the WABP fill. (Pls.' Compl. at ¶¶ 126 and 129.)
On March 23, 2009, Pioneer timely appealed Defendants' decision denying Pioneer's Source Approval Request to the Pennsylvania Environmental Hearing Board. (Pls.' Compl. at ¶ 137.) At a September 9, 2009 meeting to discuss Pioneer's Source Approval Request, Defendants stated they were not comfortable approving the WABP as a clean fill source because Defendants were not going to approve anything that they could not physically inspect. (Pls.' Compl. at ¶ 140 and 142.)
By April 26, 2010, an inactive mine in Coplay, Pennsylvania applied to the PADEP Bureau of Waste to have the WABP fill placed in their mine. (Pls.' Compl. at ¶¶ 144 and 148.) As part of the approval process, the Coplay Facility submitted a request for approval of the WABP to the Bureau of Waste, which determined that the material met the Waste Clean Fill policy's definition of "clean fill," and thus approved the request. (Pls.' Compl. at ¶ 148.) Pioneer ceased its appeal when it learned that the WABP fill that was the subject of Pioneer's Source Approval Request was placed in the Coplay Facility and was no longer available. (Pls.'Compl. at ¶ 144.)
This matter is presented to the district court as a motion to dismiss. In light of the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Middle District of Pennsylvania has adopted the following standard by which to treat motions to dismiss. "[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to 'state a claim that relief is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). In Iqbal, the Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. Furthermore, "[d]etermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted); McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009).
District courts confronted by a motion to dismiss should engage in a two-step analysis. First, the district court should accept all well-pleaded facts as true, but may reject mere legal conclusions. Second, the district court should then determine whether the facts, as asserted, establish a "plausible claim for relief." Iqbal, 129 S.Ct. at 1950. Thus, a complaint must "show" an entitlement to relief with facts, as a mere allegation that a plaintiff is entitled to relief is insufficient to withstand a motion to dismiss. See Philips v. Co, of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n] - that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1949.
Defendants' Motion to...
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