RICHARD G. STEARNS, District Judge.
Plaintiff Conservation Law Foundation, Inc. (CLF), a member-supported environmental nonprofit, brings this citizen suit under the Clean Water Act (CWA) against defendant American Recycled Materials, Inc. (ARM), asserting that ARM is discharging pollutants into waters of the United States without the necessary permits. ARM has moved to dismiss. For the following reasons, the court will grant the motion.
For the purposes of a motion to dismiss, the court takes the facts alleged in the Complaint as true and draws all reasonable inferences in favor of CLF as the nonmoving party. See Katz v. Pershing, LLC, 672 F.3d 64, 70-71 (1st Cir. 2012).
The CWA requires permits for most discharges of pollutants from a point source. See 33 U.S.C. § 1311(a); id. § 1362(14) (defining "point source" as a "discernable, confined and discrete conveyance," such as a "pipe, ditch, [or] channel"). An exception is stormwater, the discharge of which requires a permit only if the discharge falls into certain enumerated categories. See id. § 1342(p). One such category is "industrial discharges." Id. § 1342(p)(3)(A). Environmental Protection Agency (EPA) regulations prescribe certain categories of "facilities" which engage in "industrial activity" and must, as a result, seek permits. See 40 C.F.R. § 122.26(b)(14). Many of these categories are defined by reference to "Standard Industrial Classification" (SIC) codes, which segment different classes of industrial activity.
This statutory framework forms the backdrop. ARM operates a facility at 157-165 Lowland Street in Holliston, Massachusetts. The facility abuts Bogastow Brook, a small stream that flows into South End Pond and the Charles River. The parties do not agree on the nature of the work done at ARM's facility. CLF alleges that ARM engages in "processing and/or manufacturing cut stone and gravel, asphalt and cement mixtures, and wood chips, recycling materials, and collecting and processing refuse," thus falling within a number of categories of industrial activity for which discharge permits are required.
CLF further alleges that stormwater runoff from the ARM facility reaches Bogastow Brook from point sources, channeling pollutants into the stream. It contends that during rainstorms or snowmelt, runoff flows over uncovered piles of recycled materials at the facility, gathering dust, solids, oil and gas, and other pollutants. Compl. ¶¶ 34-39. CLF contends that this runoff then reaches the Brook through "site grading, surface water channels, subsurface hydrological connections, detention ponds, pipes, and other conveyances." Id. ¶ 40.
In addition, CLF alleges that ARM's industrial activities create "process wastewater": "water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product." 40 C.F.R. § 122.2. CLF alleges that ARM uses water during its industrial processes for "washing and spraying recycled asphalt, concrete, gravel, soil, and other material piles; machinery and equipment; loading and unloading areas; and maintenance areas," Compl. ¶ 49, and that this water is then discharged into Bogastow Brook, id. ¶ 50. The parties agree that ARM has never obtained a permit for discharges of process wastewater.
CLF filed this lawsuit under the citizen suit provision of the CWA, 33 U.S.C. § 1365, in December of 2016. In due course, ARM moved to dismiss, asserting that CLF lacks standing to litigate the issue and that CLF's Complaint fails to make out a viable legal claim. See Fed. R. Civ. P. 12(b)(1), (6). The court heard argument on the motion on June 1, 2017.
Standing is a necessary prerequisite to a court's Article III authority to adjudicate a case, and challenges to standing therefore must be addressed before reaching the merits. See Baena v. KPMG LLP, 453 F.3d 1, 4 (1st Cir. 2006). "[A]t the pleading stage, the plaintiff bears the burden of establishing sufficient factual matter to plausibly demonstrate [its] standing to bring the action." Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016).
The familiar triad of injury in fact, causation (or "traceability"), and redressability comprises Article III standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-561 (1992). When an organization like CLF seeks to represent the interests of its members, it must demonstrate that "at least one of its members has standing in his or her own right, the interests served by the suit are pertinent to the mission of the organization, and relief does not require the presence of the members in the suit." Town of Norwood v. F.E.R.C., 202 F.3d 392, 405-406 (1st Cir. 2000).
ARM challenges CLF's standing on three grounds. First, it argues that CLF has neglected the abecedarian requirement that it must identify a group member who has been harmed by ARM's conduct. See Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016) (Souter, J.). CLF has now mooted this issue by responding to the motion to dismiss with affidavits from three of its members describing the injuries they believe ARM has caused.
That leads to ARM's second objection, which is that CLF has not alleged an actual or imminent harm establishing an injury in fact. This argument fails in light of the member affidavits. CLF member Sierra H. Bright declares that she own a farm along the Charles River downstream of Bogastow Brook. Dkt #10-2, ¶¶ 4-5. The Charles River frequently floods her fields, and as a result she is concerned that pollution in the water contaminates the soil and reduces her crop yield. Id. ¶ 14. She also states that she enjoys observing wildlife along the river from her home and land, and that pollution detracts from the experience. Id. ¶¶ 7, 11, 13. Similarly, CLF member Sara L. Wragge declares that she kayaks regularly on South End Pond and the Charles River downstream of Bogastow Brook, and that she views wildlife for pleasure on these excursions. Dkt #10-4, ¶ 4. These activities are dependent on clean water, and she is concerned that discharges from ARM degrade water quality and reduce her enjoyment. Id. ¶¶ 9-10. Finally, CLF member Cornelia C. Roberts declares that she regularly recreates along the Charles River downstream of Bogastow Brook, observing wildlife and views of both the Brook and the Charles River. Dkt #10-3, ¶¶ 4, 7, 8. She similarly states that her enjoyment of these activities is adversely impacted by water pollution. Id. ¶ 12.
These averments suffice to establish injury in fact to a CLF member. It has long been established that harms to aesthetic and recreational interests are injuries in fact for standing purposes and rise above a mere speculative prospect of harm. See Sierra Club v. Morton, 405 U.S. 727, 735 (1972); see also Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009).
ARM's third argument challenges the sufficiency of CLF's allegations of causation. Specifically, ARM contends that CLF has failed to plead a fairly traceable link between the claimed discharges and the harms allegedly suffered by CLF's members. This issue is better resolved on the merits. The Complaint alleges that ARM's discharges contain pollutants, ¶ 36, and each of the member declarations describes harms resulting from water pollution downstream of the facility. More broadly, the traceability requirement for standing "does not mean that plaintiffs must show to a scientific certainty that defendant's [actions], and defendant's [actions] alone, caused the precise harm suffered by plaintiffs . . . . The fairly traceable requirement . . . is not equivalent to a requirement of tort causation." Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248, 257 (3d Cir. 2005), quoting Pub. Interest Res. Grp. of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3d Cir. 1990). The fact that ARM allegedly discharges pollutants into the Bogastow Brook, and that those discharges contribute to the aesthetic injuries the plaintiffs have suffered, suffices to establish traceability for standing purposes.
ARM's arguments about causation, however, touch on the core argument supporting its motion to dismiss under Rule 12(b)(6). ARM contends that CLF has failed to plead sufficient facts to make out a plausible allegation that any "discharge" from a "point source" occurs from ARM's facility.
The CWA defines the term "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)(A). ARM contends that there is no "addition" of pollutants to Bogastow Brook from its facility. It has provided two engineering drawings of the facility site showing that the facility is surrounded by an earthen berm, including along the side of the site bordering Bogastow Brook.
CLF's factual allegations about discharges are contained in two paragraphs of the Complaint:
Although CLF does not specify the basis for its "information and belief" in the Complaint, see Menard v. CSX Transp., Inc., 698 F.3d 40, 44 & n.5 (1st Cir. 2012) ("information and belief" pleading must involve reliance on secondhand information believed to be true, and not on "pure speculation"), CLF offers several rejoinders to ARM's arguments about its remediation efforts. It points out that ARM's documents demonstrate that the site elevation of the lot on which the facility is located descends from 180 feet to approximately 153 feet along Bogastow Brook, and argues that satellite imagery obtained from Google Earth and attached to the Complaint suggests that the width of the berm along the Brook is narrower than depicted on the drawings. Opp'n at 19; Compl. Ex. B. In addition, the water in the sedimentation pond sits approximately one foot below the height of the berm, Def.'s Ex. B, and "[i]t is not clear, but will be clear once CLF has access to ARM's facility during discovery, whether the pond has an outlet or under what conditions water discharges from the pond during heavy rain events or periods of snow melt," Opp'n at 19. Finally, CLF asserts that "in addition to the pond, there are other points of discharge to Bogastow Brook, as CLF will prove at trial." Opp'n at 19.
These allegations, singly and collectively, are insufficient to plausibly allege that ARM's facility discharges into Bogastow Brook. In the absence of the berm and sedimentation pond, CLF might make out a viable claim: the court accepts the common-sense proposition that water flows downhill, see generally Isaac Newton, Philosophiae Naturalis Principia Mathematica (1687), and a complaint may cross the plausibility threshold based on common sense, see García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). Here, however, materials appropriately before the court plainly demonstrate that something more than the force of gravity is required for discharges to occur. Despite this fact, CLF acknowledges that it has no information about discharges from the sedimentation pond, and it does not allege facts that plausibly show that water escapes over, under, around, or through the surrounding earthen berm.
CLF's assertion that it will demonstrate at trial that other avenues exist by which water reaches the Brook likewise also does not carry the Complaint over the plausibility threshold. No factual matter is alleged beyond the information and belief assertion that "site grading, surface water channels, subsurface hydrological connections, detention ponds, pipes, and other conveyances" carry water to the Brook "by the operation of gravity." Compl. ¶ 40. No specific conveyances are identified. Nor is any information provided in the Complaint to explain why it is plausible to think that contaminated water actually does breach ARM's defenses and reach the Brook through these conveyances, if they do exist. Perhaps there are good reasons, based on hydrological principles or otherwise, to believe that water reaches the Brook through some of these sources, but the Complaint does not explain them. The result is that the allegations of discharge are "so general and conclusory as to amount merely to an assertion that unspecified facts exist to conform to the legal blueprint." Menard, 698 F.3d at 45.
Of course, the plausibility standard is sometimes applied more flexibly where "a material part of the information needed is likely to be within the defendant's control." García-Catalán, 734 F.3d at 104. In those instances, limited discovery may be permitted to provide a missing link. See Saldivar v. Racine, 818 F.3d 14, 23 (1st Cir. 2016). Key to those cases, however, is the proposition that a party could not reasonably be expected to plead sufficient factual matter without discovery. For example, the First Circuit has remanded for limited discovery a case in which a man injured twice in rapid succession on a railroad track could not be reasonably expected to ascertain information about the defendant's conduct between his injuries. See Menard, 698 F.3d at 45. Similarly, in García-Catalán, the First Circuit observed in a slip-and-fall case that "it cannot reasonably be expected that the [plaintiff], without the benefit of discovery, would have any information about either how long the liquid was on the floor or whether any employees of the [defendant] were aware of the spill." 734 F.3d at 104. These complaints created a "reasonable expectation" that discovery would reveal evidence to fill in the gaps. Butler v. Balolia, 736 F.3d 609, 617-618 (1st Cir. 2013), quoting Twombly, 550 U.S. at 556. Here, by contrast, it is not unreasonable to expect CLF to obtain basic information plausibly suggesting that a discharge occurs before subjecting ARM to the burdens of discovery: more detailed allegations explaining why it is reasonable to believe that ARM's defenses are ineffective, observations of discharges, or downstream testing of pollutants, singly or in combination, might meet the challenge.
For the foregoing reasons, ARM's motion to dismiss (Dkt #7) is
SO ORDERED.
