Blue Water Balt. v. Fleischmann's Vinegar Co.

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BLUE WATER BALTIMORE, INC., Plaintiff,, v. FLEISCHMANN'S VINEGAR COMPANY, INC. et al., Defendants.

CIVIL No. 1:23-cv-00917-JMC

United States District Court, D. Maryland

October 27, 2023

MEMORANDUM OPINION AND ORDER

Plaintiff Blue Water Baltimore, Inc. filed the present action against Fleischmann's Vinegar Company, Inc. (“Fleischmann's”) and Kerry Inc. (collectively “Defendants”) on April 4, 2023 alleging violations of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (“Clean Water Act” or “CWA”) “and state laws.” (ECF No. 1 at p. 7).^[1] Plaintiff then amended its Complaint on April 26, 2023, as a matter of right pursuant to Fed.R.Civ.P. 15(a) and included additional allegations that Defendants violated the Resources Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (“RCRA”), and clarified that Defendants allegedly violated Md. Code Ann., Envir. § 9-322 and the Code of Maryland Regulations (“COMAR”) 26.08.02.03-2. (ECF No. 8; ECF No. 8-1 at p. 11). Presently before the Court is Plaintiff's Motion for Leave to file a Second Amended Complaint (the “Motion”) to (1) add a new defendant, Kerry Holding Co.; (2) revise the description of the relationship between Defendants Kerry Inc. and Fleischmann's Vinegar Company, Inc.; and (3) incorporate additional dates of violations of the CWA, the RCRA, and “corresponding laws of the State of Maryland that have occurred since the filing of the Amended Complaint on April 26, 2023.” (ECF No. 19-1 at p. 1). The Court has considered the Motion, Defendants' Opposition thereto (ECF No. 20), and Plaintiff's Reply (ECF No. 23). No hearing is necessary. See Loc. R. 105.6 (D. Md 2023). For the reasons explained below, Plaintiff's Motion is GRANTED.

I. BACKGROUND

a. General Background and Procedural History

Plaintiff is a nonprofit organization formed in 2010 dedicated to “protecting clean water in the Baltimore, Maryland area.” (ECF No. 8 at p. 3). “Its mission is to protect and restore the Baltimore Harbor, the greater Patapsco and Back Rivers, and their tributaries through enforcement, fieldwork, and citizen action on behalf of its members in order to make these waters suitable for recreation (including fishing and swimming), to improve public health, and to improve the health of the aquatic ecosystems.” Id. at pp. 3-4. Defendant Fleischmann's Vinegar is the selfproclaimed world's largest producer of commercial vinegar and owns a production facility in Baltimore, Maryland, which manufactures distilled vinegar for wholesale distribution. Id. at p. 6. Defendant Kerry Inc. is a global food company and, until the present Motion, was believed to be the parent company of Defendant Fleischmann's at all times relevant to Plaintiff's lawsuit. Id.

Plaintiff's Amended Complaint alleges that Defendants violated the aforementioned statutes by allowing unauthorized pollutants to be discharged into the Jones Falls stream.^[2] In both the Complaint and Amended Complaint, Plaintiff described Kerry Inc. as the parent company of Fleischmann's. However, Defendants filed a corporate disclosure statement on May 15, 2023, as required by the Local Rules of this Court indicating that a newly disclosed entity-Kerry Holding Co.-is the parent company of both Fleischmann's and Kerry Inc. (ECF No. 2 at p. 2; ECF No. 9); see Loc. R. 103.3 (D. Md. 2023). Defendants then filed an Answer to Plaintiff's Amended Complaint on June 6, 2023, in which Defendants denied that Kerry Inc. is Fleischmann's parent company but provided no description of the relationship between the two already-named Defendants and made no mention of Kerry Holding Co. See generally (ECF No. 10).

On July 19, 2023, Plaintiff sent interrogatories to Defendants requesting information regarding the relationship and corporate structure between Kerry Holding Co., Fleischmann's, and Kerry Inc. (ECF No. 19-1 at p. 3). Defendants responded to those interrogatories on August 18, 2023, by indicating again that Kerry Holding Co. is the parent company of both Fleischmann's and Kerry Inc., and that Kerry Holding Co. owns 100% of Fleischmann's stock. Id. On information and belief, all three entities-Kerry Holding Co., Kerry Inc., and Fleischmann's- “exercise some amount of control of and have involvement in the operation of the Fleischmann's Vinegar Facility where the alleged violations occurred” and “all three entities share the same directors and officers.” Id. For instance, Plaintiff avers that Kerry Inc. “provides shared services to Fleischmann's Vinegar, including but not limited to providing in-house counsel, interim management of the Vinegar Facility, and health, safety, and environmental management services for the Vinegar Facility.” Id. This is buttressed by the public records request made by Plaintiff on the Maryland Department of the Environment (“MDE”) and MDE's inspections of the vinegar manufacturing facility in question, the results of which indicated that: (1) Defendant Fleischmann's is the Facility Operator of the vinegar manufacturing facility and Defendant Kerry Inc. is the Facility Owner; (2) managerial staff employed at the vinegar facility hold titles indicating that they work for both Defendants Fleischmann's and Kerry Inc.; and (3) managerial staff employed at the vinegar facility submitted applications to conduct work in Jones Falls further conflating the relationship between the two already-named Defendants.^[3] Id. at p. 4. Plaintiff then filed the present Motion seeking leave to file a Second Amended Complaint. (ECF No. 19).

b. Factual Allegations Set Forth in Plaintiff's Proposed Second Amended Complaint

The State of Maryland is authorized to administer the CWA's National Pollutant Discharge Elimination System (“NPDES”) permitting program. (ECF No. 8-3 at ¶ 3). The MDE issued Defendants NPDES permit No. MD0002101, effective July 1, 2020, which authorizes Defendants to “discharge non contact cooling water from the vinegar generators via Outfall 001” into the Jones Falls stream. Id. at ¶ 4. Defendants' facility is also permitted under the RCRA as a “Very Small Quantity Generator” to generate the following hazardous wastes: potassium permanganate, ethanol, phosphoric acid, and sulfuric acid. Id. at ¶ 6. Defendants' discharges are authorized only from Outfall 001, which is a single “6 or 8 [inch] pipe at the Northwest edge of the property, approximately 30 feet above the receiving water body.” Id. at ¶ 66. Defendants are also required to remove chlorine from the non-contact cooling water to permissible limits before discharging the non-contact cooling water from Outfall 001. Id. at ¶ 67. Notably, Outfall 001 discharges directly into Jones Falls, which consequently flows into the Baltimore Harbor, Patapsco River, and Chesapeake Bay. Id. at ¶ 68.

Defendants are required to manage and control stormwater generated at the vinegar manufacturing facility and comply with the terms of the Maryland General Discharge Permit for Discharges Associated with Industrial Activities, which establishes various effluent limits. Id. at ¶ 70-71. Additionally, Defendants are required to abide by Special and General Conditions that establish enforceable requirements for the vinegar facility's operation, including requirements that Defendants maintain their facilities and systems in good working order and that Defendants take all reasonable steps to minimize or prevent any adverse impact to Maryland's waters or people resulting from any noncompliance with effluent limitations. Id. at ¶ 73.

According to Plaintiff, there have been numerous unpermitted discharges at Defendants' vinegar manufacturing facility from September 12, 2021, through the filing of Plaintiff's lawsuit. Id. at ¶ 83. Specifically, Plaintiff contends that Defendants have violated their discharge permits by (1) discharging unauthorized effluents from Defendants' facility; (2) discharging approved effluents in excess of Defendants' permit limitations; and (3) discharging effluents-authorized or unauthorized-from an unpermitted metal pipe adjacent to Outfall 001, cracks and fissures in the facility's walls and/or foundation, a stormwater outfall, and various other parts of the facility. Id. at ¶¶ 83-97. According to Plaintiff, these actions not only violate the permits and safety protocols by which Defendants are bound, but they have also resulted in a notable impact on local ecological life including the fluctuation of pH levels in the Jones Falls stream, excessive algae growth, and “fish kill events” during which approximately 1,000 dead fish were reported dead in the Jones Falls stream directly adjacent to the vinegar manufacturing facility with an accompanying “strong smell of vinegar.” Id. at ¶¶ 98-120. Thus, Plaintiff alleges that Defendants violated Sections 301 and 402 of the CWA, 33 U.S.C. §§ 1311 and 1342; COMAR 26.08.02.03-2; and the RCRA, 42 U.S.C. § 6972(a)(1)(B). Id. at ¶¶ 121-57.

II. STANDARD OF REVIEW

Pursuant to Fed.R.Civ.P. 15(a)(2), when a party's timeframe for amending its pleading as a matter of course expires, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” “Under Rule 15(a), the district court ‘has broad discretion concerning motions to amend pleadings ....'” Macsherry v. Sparrows Point, LLC, No. ELH-15-22, 2016 WL 8669914, at *8 (D. Md. Oct. 28, 2016) (quoting Booth v. Maryland, 337 Fed.Appx. 301, 312 (4th Cir. 2009) (per curiam)) (other citation omitted). The Supreme Court of the United States has stated:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afford an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as

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