Case 1:21-cv-01600-JPW Document 1 Filed 09/24/21 Page 1 of 48
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`UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
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`LOWER SUSQUEHANNA RIVERKEEPER
`ASSOCIATION
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`Case No._____________
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`Plaintiff
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`HANOVER FOODS CORPORATION
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`Defendant.
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`_________________________________________)
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`COMPLAINT
`NATURE OF THE CASE
`The Lower Susquehanna Riverkeeper Association (“Plaintiff” or
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`1.
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`“Citizens”), by and through their counsel, the Environmental Integrity Project
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`(“EIP”), file this Complaint against Hanover Foods Corporation (“Hanover Foods”
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`or “Defendant”) for significant and ongoing violations of the Clean Water Act, 33
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`U.S.C. § 1251 et seq. (CWA), and Pennsylvania’s Clean Streams Law, the Act of
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`June 22, 1937, P.L. 1987, as amended, 35 Pa. Cons. Stat. § 691.1 et seq. (CSL), at
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`Defendant’s food processing facility (the “Facility”), located at 1550 York Street,
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`Hanover, Pennsylvania 17331-0334, in Penn Township, York County.
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`2.
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`Industrial wastewater generated from the Facility is partially treated at
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`an on-site industrial wastewater treatment plant (“WWTP”). The WWTP
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
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`LOWER SUSQUEHANNA RIVERKEEPER
`ASSOCIATION
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`Case No._____________
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`Plaintiff
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`HANOVER FOODS CORPORATION
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`Defendant.
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`_________________________________________)
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`COMPLAINT
`NATURE OF THE CASE
`The Lower Susquehanna Riverkeeper Association (“Plaintiff” or
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`1.
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`“Citizens”), by and through their counsel, the Environmental Integrity Project
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`(“EIP”), file this Complaint against Hanover Foods Corporation (“Hanover Foods”
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`or “Defendant”) for significant and ongoing violations of the Clean Water Act, 33
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`U.S.C. § 1251 et seq. (CWA), and Pennsylvania’s Clean Streams Law, the Act of
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`June 22, 1937, P.L. 1987, as amended, 35 Pa. Cons. Stat. § 691.1 et seq. (CSL), at
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`Defendant’s food processing facility (the “Facility”), located at 1550 York Street,
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`Hanover, Pennsylvania 17331-0334, in Penn Township, York County.
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`2.
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`Industrial wastewater generated from the Facility is partially treated at
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`an on-site industrial wastewater treatment plant (“WWTP”). The WWTP
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`Case 1:21-cv-01600-JPW Document 1 Filed 09/24/21 Page 2 of 48
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`discharges partially treated wastewater to Penn Township’s municipal wastewater
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`treatment plant, which then discharges the wastewater to Oil Creek. The WWTP
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`also discharges wastewater directly to Oil Creek from Outfall 001.
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`3.
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`Oil Creek—with a watershed of approximately 16.8 square miles—is
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`a small tributary to Codorus Creek.1 Pollution from Oil Creek flows downstream
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`directly into the Codorus Creek, which flows into the Lower Susquehanna River.
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`4.
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`5.
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`Defendant owns and operates the Facility, including the WWTP.
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`On June 29, 2021, Plaintiff sent a Notice of Intent to Sue letter to
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`Defendant and other recipients as required by section 505(b)(1)(A) of the CWA, 33
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`U.S.C. § 1365(b)(1)(A), and section 601(e) of the CSL, 35 P.S. § 691.601. Exhibit
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`1, Lower Susquehanna Riverkeeper Association, Notice of Intent to Sue Hanover
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`Foods Corporation for Violations of the Clean Water Act and Pennsylvania’s
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`Clean Streams Law at the Hanover Foods facility in York County, Pennsylvania
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`(Jun. 29, 2021) (“NOI”).
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`6.
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`The CWA prohibits any person from discharging any pollutant into
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`waters of the United States from a point source without compliance with a National
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`Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. §§ 1311(a),
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`1 York County Planning Commission, York County Environmental Resources
`Inventory (Feb. 2018), 52-53 available at
`https://www.ycpc.org/DocumentCenter/View/285/Environmental-Resources-
`Inventory-PDF.
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`1342. Pennsylvania’s CSL similarly prohibits the discharge of industrial waste or
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`pollution into waters of the Commonwealth by any person. 35 P. S. §§ 691.1,
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`691.301, 691.307, 691.401.
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`7.
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`The Pennsylvania Department of Environmental Protection (“DEP”)
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`is authorized to administer the CWA’s NPDES permitting program for the
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`Commonwealth of Pennsylvania. See 33 U.S.C. § 1342; see, e.g., 67 Fed. Reg.
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`55,841, 55,842 (Aug. 30, 2002) (stating that the Environmental Protection Agency
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`(“EPA”) delegated to DEP authority to issue NPDES permits on June 30, 1978).
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`DEP issues NPDES permits pursuant to its authority under the CWA and the CSL.
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`See, e.g., 25 Pa. Code § 963.1 (defining a “Part I Permit” as an NPDES permit
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`“issued by the Department under section 5 of The Clean Streams Law (35 P. S. §
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`691.5) and section 402 of the Clean Water Act (33 U.S.C.A. § 1342).”).
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`8.
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`On September 22, 2015, DEP issued Defendant a renewal of NPDES
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`Permit No. PA0044741, which became effective on October 1, 2015. Exhibit 1,
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`NOI, Attachment D, Authorization to Discharge Under the National Pollutant
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`Discharge Elimination System, Discharge Requirements for Industrial Wastewater
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`Facilities, NPDES Permit No. PA0044741 (Sept. 22, 2015) (issued to Hanover
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`Foods Corp, effective Oct. 1, 2015) (the “2015 NPDES Permit”). Although the
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`2015 NPDES Permit expired on September 30, 2020, it was administratively
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`continued by DEP and remains in effect.
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`9.
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`The 2015 NPDES Permit authorizes Defendant to discharge specific
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`pollutants from the Facility from several permitted outfalls, with specific limits on
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`several parameters. The 2015 NPDES Permit also imposes monitoring and
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`reporting requirements pertaining to the discharge and requires proper operation
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`and maintenance of the WWTP. The 2015 NPDES Permit prohibits the discharge
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`of any substances that result in observed deposits in the receiving water or that
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`produce an observed change in the color or turbidity of the receiving water.
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`10. Defendant has discharged, and continues to discharge, through Outfall
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`001, industrial wastewater containing pollutants at levels that exceed effluent
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`limitations into Oil Creek, a tributary to Codorus Creek, which flows into the
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`Susquehanna River.
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`11. Defendant has discharged and, upon information and belief, continues
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`to discharge, substances that result in observed deposits in Oil Creek and
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`substances that produce an observed change in the color and turbidity of Oil Creek.
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`12. The 2015 NPDES Permit and all conditions contained therein are each
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`“a permit or condition of a permit issued under [33 U.S.C. § 1342],” and as such
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`are each an “effluent standard or limitation” as defined by section 505(f)(7) of the
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`CWA. 33 U.S.C. § 1365(f)(7).
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`13. Defendant’s discharges of pollutants through Outfall 001 to Oil Creek
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`in excess of the 2015 NPDES Permit effluent limits and failures to comply with
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`other permit limits and conditions violate the 2015 NPDES Permit and also
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`constitute violations of the CWA and the CSL.
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`14. The Penn Township Wastewater Treatment Plant (“Penn Township
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`WWTP”) administers a pretreatment program, approved by the regional
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`administrator of the EPA in accordance with 40 C.F.R. § 403.11. According to its
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`pretreatment program, Penn Township WWTP sets pretreatment standards and
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`issues pretreatment permits to industrial facilities that discharge to it.
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`15. Defendant holds a pretreatment permit issued by the Penn Township
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`WWTP, effective January 1, 2021, authorizing effluent discharge from the Facility
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`to the Penn Township WWTP according to its terms. Exhibit 1, NOI, Attachment
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`L, Penn Township Wastewater Treatment Plant Industrial Wastewater Discharge
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`Permit, Permit No. 2021-4 (the “2021 Pretreatment Permit”).
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`16. Previously, Defendant held a permit issued by Penn Township
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`WWTP, effective January 1, 2016 to December 31, 2020, which authorized
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`effluent discharge from the Facility to the Penn Township WWTP according to its
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`terms. Exhibit 1, NOI, Attachment M, Penn Township Wastewater Treatment Plant
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`Industrial Wastewater Discharge Permit, Permit No. 2016-4 (the “2016
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`Pretreatment Permit”).
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`17. Defendant has discharged and, upon information and belief, continues
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`to discharge, effluent to the Penn Township WWTP at a flow rate, and/or with
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`pollutant loads, that exceed permitted levels, in violation of the 2016 and 2021
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`Pretreatment Permits.
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`18. The limits and conditions contained in the 2016 Pretreatment Permit
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`and the 2021 Pretreatment Permit are each a “prohibition, effluent standard or
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`pretreatment standard” under section 307 of the CWA, and as such are each an
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`“effluent standard or limitation” as defined by section 505(f)(4) of the CWA. 33
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`U.S.C. § 1365(f)(4).
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`19. Defendant’s discharges of effluent to Penn Township WWTP violated
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`the requirements of the 2016 Pretreatment Permit and continue to violate the
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`requirements of the 2021 Pretreatment Permit; these violations also constitute
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`violations of the CWA.
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`20. Section 505(a)(1) of the CWA authorizes Citizens to bring suit for
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`violations of the CWA and Defendant’s 2015 NPDES Permit, 2016 Pretreatment
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`Permit, and 2021 Pretreatment Permit. 33 U.S.C. § 1365(a)(1).
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`21. Section 601(c) of the CSL authorizes Citizens to commence a civil
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`suit against Defendant to compel compliance with the CSL and the 2015 NPDES
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`Permit. 35 P.S. § 691.601(c).
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`22. Citizens have satisfied the sixty-day notice provision in section
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`505(b)(1)(A) of the CWA and section 601(e) of the CSL and no bar to citizen
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`enforcement exists pursuant to section 505(b)(1)(B) of the CWA or section 601(e)
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`of the CSL because neither EPA nor DEP has commenced a civil or criminal
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`enforcement action in federal or state court, and the violations alleged in the NOI
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`and this Complaint will continue until this Court orders Defendant to abate the
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`violations and take all steps necessary to come into full compliance with the CWA
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`and CSL.
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`JURISDICTION AND VENUE
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`23. This Court has subject matter jurisdiction over this action pursuant to
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`33 U.S.C. § 1365(a) (regarding citizens’ suits under the CWA) and 28 U.S.C.
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`§ 1331 (federal question jurisdiction), and supplemental jurisdiction regarding the
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`CSL claims pursuant to 28 U.S.C. § 1367(a).
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`24. Pursuant to CWA section 505(c), 33 U.S.C. § 1365(c), venue is proper
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`because the Facility is located in this judicial district.
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`25. Pursuant to section 505(b)(1)(A) of the CWA, 33 U.S.C.
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`§ 1365(b)(1)(A), Citizens gave notice more than sixty days prior to the
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`commencement of this action to all required parties, including: 1) Defendant; 2)
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`DEP; and 3) EPA. See Exhibit 1, NOI.
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`26. Neither EPA nor the Commonwealth of Pennsylvania has commenced
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`or is diligently prosecuting a civil or criminal action against Defendant in a court
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`of the United States or the Commonwealth of Pennsylvania to require compliance
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`with the laws, rules, regulations, permits, standards, limitations, or orders at issue
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`in this case.
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`27. As explained below, Defendant has discharged and continues to
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`discharge pollutants in violation of the numeric limitations contained in the 2015
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`NPDES Permit and is failing to adhere to other permit conditions and limitations,
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`in violation of the CWA and the CSL. The Defendant also has discharged and
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`continues to discharge wastewater to Penn Township WWTP in excess of its flow
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`and pollution limits pursuant to the 2016 Pretreatment Permit and 2021
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`Pretreatment Permit, in violation of the permits and the CWA. Defendant is not
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`operating and maintaining the Facility, including the WWTP, sufficiently to ensure
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`compliance. Therefore, the violations alleged herein will continue until this Court
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`enjoins Defendant from discharging in violation of the applicable permits, the
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`CWA, and the CSL, and orders Defendant to address and remedy the underlying
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`causes of the violations.
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`PARTIES
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`28. Plaintiff Lower Susquehanna Riverkeeper Association (“LSRA”) is a
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`501(c)(3) nonprofit watershed association licensed by the Waterkeeper® Alliance
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`on September 15, 2005. LSRA is dedicated to improving and protecting the
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`ecological integrity of the Susquehanna Watershed and the Chesapeake Bay by
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`identifying sources of pollution and enforcing environmental laws. LSRA also
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`actively educates the public on current water quality issues, works with decision-
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`makers to emphasize the economic and social benefits of protecting our watershed,
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`and, when necessary, enforces laws protecting communities and natural resources
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`of the Susquehanna Watershed.
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`29. LSRA members include avid kayakers, anglers, bird watchers,
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`business owners, and other users of the Lower Susquehanna River and its
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`tributaries, including the Codorus Creek, into which Oil Creek flows, and the
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`Lower Susquehanna River Watershed. These members have been injured and will
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`continue to be injured by Defendant’s pollution that violates environmental laws,
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`as described herein, as these violations threaten members’ use and enjoyment of
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`Codorus Creek and the Lower Susquehanna River.
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`30. Defendant is a Pennsylvania corporation, registered to conduct
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`business in the Commonwealth of Pennsylvania. Defendant is a “person” as that
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`term is defined in CWA section 502(5) and CSL section 1. 33 U.S.C. § 1362(5); 35
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`P.S. § 691.1.
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`31. Defendant maintains a business address of 1486 York Street, P.O.
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`Box 334, Hanover, Pennsylvania, 17331-9570.
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`STANDING
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`32. Members of LSRA live, work, and/or recreate within the Lower
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`Susquehanna River Watershed and have been adversely affected by Defendant’s
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`long-standing failure to comply with its permits, the CWA, and the CSL.
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`33. Defendant’s discharges of pollution into Oil Creek, which flows
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`directly into Codorus Creek, have negatively impacted LSRA members’ use and
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`enjoyment of the Lower Susquehanna River Watershed, including Codorus Creek.
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`LSRA members have observed sediment and turbidity in Codorus Creek near the
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`confluence with Oil Creek and are concerned about the effects of Defendant’s non-
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`compliance and pollution on Oil Creek, Codorus Creek, and the Lower
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`Susquehanna River and wildlife, and on their enjoyment of recreational activities,
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`such as fishing, kayaking, and canoeing on the Codorus Creek and the Lower
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`Susquehanna River, and hiking and biking on trails along the Codorus Creek and
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`the Lower Susquehanna River.
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`34.
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` LSRA members would enjoy recreating near Oil Creek and on the
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`Codorus Creek and the Lower Susquehanna River more if Defendant were required
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`to comply with the terms of its permits and remediate the harm caused by the
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`violations described in this Complaint.
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`35. Plaintiff brings this action on behalf of itself and its members. The
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`interests that Plaintiff seeks to protect are germane to the organization’s mission
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`and interests.
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`36. These injuries to Plaintiff and its members would be redressed by a
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`declaratory judgment that Defendant is in violation of its permits, the CWA and
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`CSL; an injunction preventing Defendant from further violating its permits, the
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`CWA, and CSL; and an order requiring Defendant to assess and remediate the
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`harm caused by its violations and imposing civil penalties and the costs of
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`litigation, including attorney’s fees and future oversight costs.
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`37. Neither the claims asserted nor the relief requested requires the
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`participation of individual members of LSRA in this action.
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`38. Plaintiff has standing to bring this complaint. See, e.g., Friends of the
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`Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181–84 (2000).
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`LEGAL REQUIREMENTS
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`The Clean Water Act
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`39. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the
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`“discharge of pollutants,” except in compliance with the CWA, including
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`conditions of a NPDES permit issued under section 402, 33 U.S.C. § 1342.
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`40. Section 402 of the CWA, 33 U.S.C. § 1342, created the NPDES
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`program, under which EPA may issue NPDES permits for point source discharges
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`to waters of the United States. Section 402(b) of the Act, 33 U.S.C. § 1342(b),
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`authorizes the EPA Administrator to delegate to the states the authority to issue
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`NPDES permits. The Commonwealth of Pennsylvania, through DEP, was
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`delegated the authority to issue NPDES permits on June 30, 1978, and has been
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`implementing the federal permitting program since that date. See 67 Fed. Reg.
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`55,841-01, 55,842.
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`41. The term “discharge of pollutants” is defined in section 502(12) of the
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`CWA, 33 U.S.C. § 1362(12), to mean “any addition of any pollutant to navigable
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`waters from any point source . . . .”
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`42. Defendant discharges pollutants as that term is defined in section
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`502(12) of the CWA, 33 U.S.C. § 1362(12).
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`43. The term “pollutant” is defined in section 502(6) of the CWA, 33
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`U.S.C. § 1362(6), to include “solid waste,” “biological materials, radioactive
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`materials, heat,” and “industrial . . . waste discharged into water.”
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`44. The wastewater discharged from Defendant’s Facility, including the
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`WWTP, contains “pollutants” as defined in section 502(6) of the CWA, 33 U.S.C.
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`§ 1362(6).
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`45.
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`“Navigable waters” means “the waters of the United States . . . .” Id.
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`§ 1362(7).
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`46. The term “waters of the United States” includes “(i) The territorial
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`seas, and waters which are currently used, or were used in the past, or may be
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`susceptible to use in interstate or foreign commerce, including waters which are
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`subject to the ebb and flow of the tide; . . .” and “(ii) Tributaries.” 40 C.F.R. §
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`120.2(1)(i), (ii).
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`47. The term “tributary” means “a river, stream, or similar naturally
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`occurring surface water channel that contributes surface water flow to a water
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`identified in paragraph (1)(i) of this definition in a typical year either directly or
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`through one or more waters identified in paragraph (1)(ii) [tributaries], (iii) [lakes
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`and ponds, and impoundments of jurisdictional waters], or (iv) [adjacent wetlands]
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`of this definition. A tributary must be perennial or intermittent in a typical year.”
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`40 C.F.R. § 120.2(3)(xii).
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`48. Oil Creek and the unnamed tributaries to Oil Creek into which
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`Outfalls 002 and 003 discharge are “navigable waters” and therefore “waters of the
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`United Sates” as those terms are defined in section 502(7) of the CWA, 33 U.S.C.
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`§ 1362(7), and 40 C.F.R. § 120.2(1)(i) and (ii).
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`49.
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`“The term ‘point source’ means any discernible, confined and discrete
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`conveyance, including but not limited to any pipe, ditch, channel, tunnel . . . from
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`which pollutants are or may be discharged. . . .” Id. § 1362(14).
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`50. Outfalls 001, 002, and 003 are “point sources” as defined in section
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`502(14) of the CWA, 33 U.S.C. § 1362(14).
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`51.
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`“The term ‘person’ means an individual, corporation, partnership,
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`association, State, municipality, commission, or political subdivision of a State, or
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`any interstate body.” 33 U.S.C. § 1362(5). As stated in Paragraph 30, Defendant is
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`a “person”.
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`52. Section 307(b) of the CWA, 33 U.S.C. § 1317(b), directs EPA to
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`publish regulations establishing pretreatment standards governing the introduction
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`of pollutants into Publicly Owned Treatment Works (“POTWs”) that are
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`determined not to be susceptible to treatment by such POTWs or that would
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`interfere with the operation of such POTWs. See 40 C.F.R. § 403.
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`53. Section 307(d) of the CWA, 33 U.S.C. § 1317(d), provides that it
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`shall be unlawful for any owner or operator of any source to operate any source in
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`violation of any effluent standard or prohibition or pretreatment standard
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`promulgated under section 307.
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`54. Defendant is the “owner and operator” of the Facility, including the
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`WWTP, as per section 307(d) of the CWA, 33 U.S.C. § 1317(d).
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`55. A POTW is a treatment works which is owned by a State or
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`municipality. 40 C.F.R. § 403.3(q).
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`56. Penn Township WWTP is a POTW as per 40 C.F.R. § 403.3(q).
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`57. Pursuant to 40 C.F.R. § 403.8, Penn Township WWTP is required to
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`establish a pretreatment program.
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`58.
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`In accordance with 40 C.F.R. § 403.8, Penn Township WWTP
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`established and implements an approved pretreatment program. Penn Township
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`promulgated Sewer Use Ordinance No. 683 “Sewer System Use,” which set
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`pretreatment standards and required permits and reports related to such standards.
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`59.
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`40 C.F.R. § 403.5(c) requires a POTW with a pretreatment program to
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`develop and enforce specific limits on pollutants that may be introduced to the
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`POTW.
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`60. Pursuant to 40 C.F.R. § 403.5(d), prohibitions or limits developed by
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`a POTW in accordance with 40 C.F.R. § 403.5(c) constitute pretreatment standards
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`that are federally enforceable pursuant to section 307(d) of the CWA, 33 U.S.C. §
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`1317(d).
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`61. Pursuant to section 4.3 of Ordinance No. 683, Penn Township WWTP
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`issued Defendant a wastewater discharge permit, the 2016 Pretreatment Permit,
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`and subsequently the 2021 Pretreatment Permit, to discharge wastewater from the
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`Facility to the Penn Township WWTP.
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`62. Section 505(a)(1)(A) of the CWA states that citizens are entitled to
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`bring suit against “any person . . . alleged to be in violation” of an “effluent
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`standard or limitation” established under the CWA as defined in section 505(f),
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`which includes “a permit or condition of a permit issued under section 1342 of [the
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`CWA]” and a “prohibition, effluent standard or pretreatment standards” under
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`section 307 of the CWA. 33 U.S.C. §§ 1365(a)(1)(A), 1365(f)(4), (7).
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`63. The 2015 NPDES Permit and all conditions contained therein are each
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`“a permit or condition of a permit issued under [33 U.S.C. § 1342],” and as such
`
`are each an “effluent standard or limitation” as defined by section 505(f)(7) of the
`
`CWA. 33 U.S.C. § 1365(f)(7).
`
`64. The limits and conditions contained in the 2016 Pretreatment Permit
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`and the 2021 Pretreatment Permit are each a “prohibition, effluent standard or
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`pretreatment standard” under section 307 of the CWA, and as such are each an
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`“effluent standard or limitation” as defined by section 505(f)(4) of the CWA. 33
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`U.S.C. § 1365(f)(4).
`
`65. Any person who violates, inter alia, section 301 or 307 of the CWA,
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`33 U.S.C. §§ 1311, 1317, or who violates any condition or limitation of a NPDES
`
`permit issued pursuant to section 402 of the CWA, 33 U.S.C. § 1342, shall be
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`subject to a civil penalty of up to $56,460 per day for each CWA or permit
`
`violation that occurred after November 2, 2015, where penalties are assessed on or
`
`after December 23, 2020. 33 U.S.C. § 1319(d) (providing that any person who
`
`violates these sections of the CWA or any condition or limitation of a NPDES
`
`permit shall be subject to a civil penalty of up to $25,000 per day for each
`
`
`
`16
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`
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`Case 1:21-cv-01600-JPW Document 1 Filed 09/24/21 Page 17 of 48
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`violation); statutory civil monetary penalties, as adjusted for inflation, and tables,
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`40 C.F.R. § 19.4 tbl 1 (Dec. 23, 2020) (updating $25,000 per day civil penalty for
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`inflation to $56,460, for 33 U.S.C. § 1319(d) violations that occurred after
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`November 2, 2015, where penalties are assessed on or after December 23, 2020).
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`The Pennsylvania Clean Streams Law
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`66. Sections 301 and 307 of the CSL similarly prohibit any person from
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`discharging “industrial wastes” into waters of the Commonwealth, unless in
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`compliance with a permit issued by DEP or the rules and regulations of DEP, and
`
`section 401 of the CSL further prohibits any person from “permit[ting] to be
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`discharged from property owned or occupied by such person . . . into any of the
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`waters of the Commonwealth, any substance of any kind or character resulting in
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`pollution as herein defined.” 35 P.S. §§ 691.301, 691.307, 691.401.
`
`67. The CSL defines “Waters of the Commonwealth” to include “any and
`
`all rivers, streams, creeks . . . and all other bodies or channels of conveyance of
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`surface and underground water, or parts thereof, whether natural or artificial,
`
`within or on the boundaries of this Commonwealth.” 35 P.S. § 691.1.
`
`68. Oil Creek and the unnamed tributaries into which Outfalls 002 and
`
`003 discharge are “Waters of the Commonwealth” as defined in section 1 of the
`
`CSL, 35 P.S. § 691.1.
`
`
`
`17
`
`
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`Case 1:21-cv-01600-JPW Document 1 Filed 09/24/21 Page 18 of 48
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`69. Under the CSL, “[i]ndustrial waste” means “any liquid, gaseous,
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`radioactive, solid or other substance, not sewage, resulting from any manufacturing
`
`or industry, or from any establishment, as herein defined, and mine drainage,
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`refuse, silt, coal mine solids, rock, debris, dirt and clay from coal mines, coal
`
`collieries, breakers or other coal processing operations,” including “all such
`
`substances whether or not generally characterized as waste.” Id.
`
`70. Defendant’s wastewater is “industrial waste” as defined in section 1 of
`
`the CSL, 35 P.S. § 691.1.
`
`71. Under the CSL, “person” includes “any natural person, partnership,
`
`association or corporation . . . .” Id.
`
`72. Defendant is a “person” as defined in section 1 of the CSL, 35 P.S. §
`
`691.1.
`
`73. Plaintiff is a “person” as that term is defined in section 1 of the CSL.
`
`35 P.S. § 691.1.
`
`74. Under the CSL:
`
`“Pollution” shall be construed to mean contamination of any waters of
`the Commonwealth such as will create or is likely to create a nuisance
`or to render such waters harmful, detrimental or injurious to public
`health, safety or welfare, or to domestic, municipal, commercial,
`industrial, agricultural, recreational, or other legitimate beneficial uses,
`or to livestock, wild animals, birds, fish or other aquatic life, including
`but not limited to such contamination by alteration of the physical,
`chemical or biological properties of such waters, or change in
`temperature, taste, color or odor thereof, or the discharge of any liquid,
`gaseous, radioactive, solid or other substances into such waters. The
`18
`
`
`
`
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`Case 1:21-cv-01600-JPW Document 1 Filed 09/24/21 Page 19 of 48
`
`department shall determine when a discharge constitutes pollution, as
`herein defined, and shall establish standards whereby and wherefrom it
`can be ascertained and determined whether any such discharge does or
`does not constitute pollution as herein defined.
`
`Id.
`
`75. Defendant’s discharges to Waters of the Commonwealth constitute
`
`“pollution” as defined in section 1 of the CSL, 35 P.S. § 691.1.
`
`76. Under CSL regulations, “owner” means the “person or other legal
`
`entity holding legal title to a facility or activity subject to this chapter.” 25 Pa.
`
`Code § 91.1.
`
`77. Defendant is the “owner” of the Facility, including the WWTP,
`
`pursuant to 25 Pa. Code § 91.1.
`
`78. Section 601(c) of the CSL authorizes “any person having an interest
`
`which is or may be adversely affected” to commence a civil action to “compel
`
`compliance with this act or any rule, regulation, order or permit issued pursuant to
`
`this act . . . against any other person alleged to be in violation of any provision of
`
`this act or any rule, regulation, order or permit issued pursuant to this act.” 35 P.S.
`
`§ 691.601(c).
`
`79. Plaintiff has an interest which is or may be adversely affected by
`
`Defendant’s permit violations.
`
`
`
`19
`
`
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`Case 1:21-cv-01600-JPW Document 1 Filed 09/24/21 Page 20 of 48
`
`80. Any person who violates the CSL, or a permit or regulation issued
`
`pursuant thereto, can be subject to a civil penalty of up to $10,000 per violation per
`
`day. 35 P.S. § 691.605(a).
`
`FACTUAL ALLEGATIONS
`
`Hanover Foods
`
`81. The Hanover Foods Facility produces canned, glass packed and frozen
`
`vegetable goods. During food processing operations, the Facility generates cooling
`
`water2 and process wastewater. The WWTP receives both the industrial process
`
`wastewater from the canning operations and the cooling water.
`
`82. The WWTP provides pretreatment for the industrial process
`
`wastewater from the Facility operations before sending approximately 0.450
`
`millions of gallons per day (mgd), on average,3 of the wastewater to Penn
`
`Township WWTP for further treatment and discharge to Oil Creek. The remainder
`
`of the industrial process wastewater is combined with the cooling water and, after
`
`some additional treatment, is discharged to Oil Creek through Outfall 001 at an
`
`
`2 Though this cooling water should not be considered “non-contact cooling water”
`because it comes into contact with cans in the cooling process and could be
`contaminated by any spillage from the cans, DEP documents refer to it as “non-
`contact cooling water.” In this Complaint, Plaintiff refers to it simply as “cooling
`water.”
`3 Based on the average daily discharge reported on Defendant’s 2020 application
`for renewal of its Industrial Wastewater Discharge Permit from Penn Township
`WWTP.
`
`
`
`20
`
`
`
`Case 1:21-cv-01600-JPW Document 1 Filed 09/24/21 Page 21 of 48
`
`average flow of 0.563 mgd.4 The Facility also discharges industrial stormwater
`
`through Outfalls 002, 003, and 004.
`
`83. For pretreatment of the industrial wastewater, solids are screened and
`
`removed before the flow enters the grit removal chamber. The industrial
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`wastewater is then pumped to one of two anaerobic bio-reactors, where sludge is
`
`removed. From each of the two bio-reactors (“bio-reactor #1 and #2”), the
`
`industrial wastewater flows to a flow splitter that diverts flow between two
`
`clarifiers. Bio-reactor #1 feeds into clarifiers #1 and #2 and bio-reactor #2 feeds
`
`into clarifiers #3 and #4. Effluent from the clarifiers then flows to aeration lagoon
`
`#1, where it is sampled before the majority is sent to Penn Township WWTP for
`
`final treatment.
`
`84. The industrial wastewater that is not discharged to the Penn Township
`
`WWTP exits aeration lagoon #1 and enters aeration lagoon #2, which also receives
`
`the cooling water from the Facility. The combined industrial wastewater and
`
`cooling water discharges from lagoon #2 into two polishing ponds before
`
`undergoing ultraviolet (UV) disinfection. The wastewater is then sampled prior to
`
`discharge through Outfall 001 into Oil Creek.
`
`
`4 Based on the average flow during production/operation reported on Defendant’s
`2020 application for renewal of the 2015 NPDES Permit.
`21
`
`
`
`
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`Case 1:21-cv-01600-JPW Document 1 Filed 09/24/21 Page 22 of 48
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`85. Outfalls 002, 003, and 004 each discharge stormwater. Outfall 002
`
`receives flow from a spring and stormwater runoff from roadways and the Facility,
`
`and Outfall 003 receives stormwater flow from a waste storage area, both
`
`discharging to an unnamed tributary of Oil Creek. Outfall 004 is a spillway for a
`
`stormwater detention basin that discharges into a wetland area leading to an
`
`unnamed tributary of Oil Creek. Outfalls 002 and 003 must be monitored annually,
`
`but no monitoring is required for Outfall 004 because the detention basin receives
`
`runoff from areas of the Facility where little or no material handling occurs.
`
`86. Defendant has applied for an amendment to a Water Quality
`
`Management, Part II Permit, to construct heat transfer facilities to add to the
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`WWTP treatment system. According to DEP’s eFACTS online portal, DEP’s
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`target date for completing the technical review of the Water Quality Management
`
`Permit application is December 10, 2021.5 Upon information and belief, this
`
`project is not likely to fully address the violations alleged in this Complaint.
`
`Discovery is necessary to fully investigate the violations at the Facility and
`
`determine appropriate remedies.
`
`
`
`
`5 Pennsylvania Department of Environmental Protection, eFACTS on the Web,
`Authorization Search Details,
`https://www.ahs.dep.pa.gov/eFACTSWeb/searchResults_singleAuth.aspx?AuthID
`=1360628.
`
`
`
`22
`
`
`
`Case 1:21-cv-01600-JPW Document 1 Filed 09/24/21 Page 23 of 48
`
`The 2015 NPDES Permit
`
`87. The 2015 NPDES Permit authorizes Defendant to discharge
`
`wastewater and stormwater, subject to effluent limitations and conditions.
`
`88. Defendant’s discharge from Outfall 001 is subject to, inter alia, the
`
`following effluent limitations:
`
`a. Carbonaceous Biochemical Oxygen Demand (CBOD5)6
`
`i. May 1 – Oct. 31: monthly average concentration 10 mg/L,
`
`monthly average load 70 lbs/day, daily maximum concentration
`
`15 mg/L, daily maximum load 105 lbs/day, instantaneous
`
`maximum concentration 20 mg/L
`
`ii. Nov. 1 – Apr. 30: monthly average concentration 18 mg/L,
`
`monthly average load 126 lbs/day, daily maximum
`
`concentration 27 mg/L, daily maximum load 189 lbs/day,
`
`instantaneous maximum concentration 36 mg/L
`
`
`
`
`6 “Carbonaceous Biochemical Oxygen Demand (CBOD) re
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