Del. Riverkeeper Network v. Sunoco Pipeline L.P.

• Decision Date: 16 April 2020
• Docket Number: Civ. No. 18-2447
• Parties: DELAWARE RIVERKEEPER NETWORK, et al., Plaintiffs, v. SUNOCO PIPELINE L.P., Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

DELAWARE RIVERKEEPER NETWORK, et al., Plaintiffs, v. SUNOCO PIPELINE L.P., Defendant.

Civ. No. 18-2447

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

April 16, 2020

Diamond, J.

MEMORANDUM

The Delaware Riverkeeper Network and "Riverkeeper" Maya van Rossum charge that Sunoco Pipeline L.P. violated the Clean Water Act when the Company did not seek a federal permit for its Mariner East II Pipeline Project after regulatory authorities advised that because only a nearly identical state permit was required, they would not issue a federal permit. Surely Plaintiffs' allegation refutes itself. Even the byzantine regime of environmental regulation imposes neither such a pointless requirement nor a penalty for its "violation." Because Plaintiffs' dispute is really with the regulatory authorities and not Sunoco, I will grant Sunoco's Motion for Summary Judgment, deny Plaintiffs' Cross-Motion, and dismiss this matter.

I. LEGAL STANDARDS

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party must initially show the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is "genuine" if there is evidence on which a reasonable fact finder could base a verdict for the nonmoving party. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is "material" if it might affect the case's outcome under governing law. Id. (citing Anderson, 477 U.S. at 248). I must view the facts and draw all reasonable inferences in the opposing party's favor, although "[u]nsupported assertions, conclusory allegations, or mere suspicions are insufficient to overcome a motion for summary judgment." Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010); see Anderson 477 U.S. at 255.

If the moving party satisfies its burden, the opposing party must then show a disputed material factual issue. It is not enough simply to reiterate allegations or "show some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party must establish a triable issue by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed. R. Civ. P. 56(c).

Finally, summary judgment is appropriate if the responding party fails to make a showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

II. REGULATORY FRAMEWORK

The Clean Water Act is intended "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a); Am. Mining Cong. v. EPA, 965 F.2d 759, 762 (9th Cir. 1992). It does so primarily by "controlling 'point source' pollution": the discharge of industrial and municipal waste (and other substances) into navigable waters. Am. Mining Cong., 965 F.2d at 762. The Act authorizes citizen suits "against any person . . . who is alleged to be in violation of . . . an effluent standard or limitation." 33 U.S.C. § 1365(a)(1). Acitizen may thus "bring an action under the CWA against any person who is allegedly discharging a pollutant without a [National Pollution Discharge Elimination System] permit." Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 559 (5th Cir. 1996).

Under the CWA, the states set water quality standards employing federal criteria. See 33 U.S.C. § 1313(a). The Act thus "anticipates a partnership between the States and the Federal Government." Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992). Pennsylvania's Department of Environmental Protection "is primarily responsible for . . . water quality regulation" in the Commonwealth. Telford Borough Auth. v. EPA, 2013 WL 6047569, at *1 (E.D. Pa. Nov. 15, 2013).

"[T]he discharge of any pollutant by any person" is unlawful unless done in accordance with CWA limitations. 33 U.S.C. § 1311. The Act thus allows permitting for specified activities, such as dredging or discharging substances from point sources. The National Discharge Pollutant Elimination System provides the principal means of regulating stormwater discharges from industrial activity. An NPDES permit is required to "add" pollutants to navigable waters from a "point source"—a "confined and discrete conveyance, including . . . any pipe, ditch, [or] channel." 33 U.S.C. § 1362(14); id. §§ 1311(a), 1362(12), 1362(14). Surface runoffs following construction work are "point sources." See 40 C.F.R. § 122.2.

Every NPDES permit has two broad requirements: (1) the point source must employ either the "best conventional" or "best available" technology to limit pollution; and (2) permit holders may not exceed effluent limitations set by the states. See id. § 1311(b). Absent an exception, an NPDES permit must be obtained before pollutants are discharged from any point source into the navigable waters of the United States.

Although the Environmental Protection Agency may prescribe conditions and issueNPDES permits, states also administer their "own permit program[s] for discharges into navigable waters within [their] jurisdiction[s]." Id. § 1342(b); see 40 C.F.R. § 123 (providing state program requirements). Significantly, once the EPA approves a state's permitting program, the Act "suspends the availability of federal NPDES permits." Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1525 (11th Cir. 1996) (emphasis added); see 33 U.S.C. § 1342(c)(1). Pennsylvania has adopted such a program. Pursuant to a Memorandum of Agreement between the EPA and the Commonwealth, working with County Conservation Districts, DEP administers Pennsylvania's NPDES permitting. 25 Pa. Code § 92a; see Borough of Bedford v. Commonwealth, 972 A.2d 53, 58 n.3 (Pa. Commw. Ct. 2009). Under the MOA, the EPA closely supervises the Department's NPDES permitting activities. For instance, DEP must: provide the EPA with all draft permits; keep a file available for EPA inspection that includes exhaustive information about each permittee; and submit all data to the EPA that would allow it to evaluate the Department's administration of the NPDES program. (Memorandum of Agreement Between the Commonwealth of Pennsylvania and the United States Environmental Protection Agency Region III (Rev. May 7, 1991) at 2, Ex. 2 to Murin Aff., Ex. 1 to Def.'s Mot. Summ. J.) The EPA can object to the Department's permitting actions and require it to take corrective measures. (Id. at 2-3); see 33 U.S.C. § 1342(d); So. Cal. All. of Publicly Owned Treatment Works v. EPA, 853 F.3d 1076, 1078 (9th Cir. 2017). This degree of supervision and scrutiny ensures that the Department and EPA interpret and apply the CWA and its regulations consistently. Cf. Wisconsin v. EPA, 266 F.3d 741, 749 (7th Cir. 2001) ("[T]he EPA supervises all standards and permits.").

Pennsylvania administers several NPDES programs, including those regulating stormwater and agricultural discharges, sewer systems, and industrial waste. See, e.g., DEP, NPDES and National Pollution Discharge Elimination System WQM Permitting Programs (2020),https://tinyurl.com/rphwewb.

Congress has enacted "certain exceptions" to the prohibition on the discharge of pollutants. Nw. Envtl. Advocates v. EPA, 537 F.3d 1006, 1010 (9th Cir. 2008). Chief among them (for purposes of this dispute) is an exemption from NPDES requirements for oil and gas development stormwater discharges. No NPDES permit is thus required for

discharges of stormwater runoff from mining operations or oil and gas exploration, production, processing, or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used for collecting and conveying precipitation runoff and which are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations.

Pub. L. No. 100-4, 101 Stat. 7, 33 U.S.C. § 1342(l)(2) (emphasis added). This provision exempts from permit requirements certain projects causing uncontaminated "discharges of stormwater runoff." Id. The EPA (or DEP) has discretion to determine when stormwater contamination occurs "with respect to the substances listed in the statute, i.e., overburden, raw materials, waste products, etc." Nat. Res. Def. Council v. EPA, 966 F.2d 1292, 1307 (9th Cir. 1992); see H.R. Rep. No. 99-1004, at 151.

The "[o]il and gas" activities described in the § 1342(l)(2) exception were defined by the Energy Policy Act of 2005 to include pipeline construction. 33 U.S.C. § 1362(24); see Sierra Club v. State Water Control Bd., 898 F.3d 383, 391 (4th Cir. 2018) ("[T]he CWA exempts natural gas pipeline construction projects from regulation.") (citing 33 U.S.C. § 1342(l)(2)). The Energy Policy Act's amendments explicitly broadened the exception's scope. Nat. Res. Def. Council v. EPA, 526 F.3d 591, 599 (9th Cir. 2008).

The EPA created a regulatory exception to the CWA's pipeline exemption that restores certain default permitting requirements. See 40 C.F.R. § 122.26(c)(1)(iii). Under this "exceptionto the exemption," an oil and gas "facility" must obtain an NPDES permit if it "[c]ontributes to a violation of a water quality standard" as defined by state law. Id. The applicable Pennsylvania standard provides that "[w]ater may not contain substances attributable to point or nonpoint...