Mckeown v. Port Authority of N.Y. & N.J.

162 F.Supp.2d 173

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ex rel., Kevin MCKEOWN and No More Tolls, Plaintiffs, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Robert Boyle, Executive Director; the New York State Thruway Authority, John R. Platt, Executive Director; the Metropolitan Transportation Authority, E. Virgil Conway, Chairman; the New Jersey Turnpike Authority, James Weinstein, Commissioner; Frank X. McDermott, Chairman; the Garden State Parkway Authority, Joseph E. Buckelew, Chairman; the Maryland Transportation Authority, John D. Porcari, Secretary; the Delaware River and Bay Authority, Michael Harkins, Executive Director; the Delaware Transportation Authority, and Anne P. Canby, Secretary, Defendants.

No. 00 Civ. 0714(WHP).

United States District Court, S.D. New York.

March 30, 2001.

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Mr. Kevin McKeown, No More Tolls, Washington, D.C., Arthur P. Berg, New York, NY, for defendants the Port Authority of New York and New Jersey and Robert Boyle.

Norman Spiegel, Assistant Attorney General, Environmental Protection Bureau, New York, NY, for defendants the New York State Thruway Authority and John R. Platt.

Anthony P. Semancik, Deputy General Counsel, New York, NY, for defendants Metropolitan Transportation Authority and Virgil Conway.

Stuart M. Lederman, Riker, Danzig, Scherer, Hyland & Perretti, LLP, Morristown, NJ, for defendants the New Jersey Turnpike Authority, James Weinstein and Frank X. McDermott.

Cecelia E. Haney, Andrew Bayer, DeCotiis, Fitzpatrick & Gluck, LLP, Teaneck, NJ, for defendants the Garden State Parkway Authority and Joseph E. Buckelew.

Deborah A. Donohue, Assistant Attorney General, Baltimore-Washington International Airport, MD, for defendants the Maryland Transportation Authority and John D. Porcari.

Frederick H. Schranck, Deputy Attorney General, Dover, DE, for defendant the Delaware Transportation Authority and Anne P. Canby.

MEMORANDUM AND ORDER

PAULEY, District Judge.

Plaintiffs Kevin McKeown ("McKeown") and his organization No More Tolls (collectively "plaintiffs") commenced this pro se citizen's suit against defendants, state authorities and officials responsible for operating toll roads, bridges and tunnels in New York, New Jersey, Delaware and Maryland, alleging that they operate and maintain toll booth facilities in violation of the Clean Air Act, 42 U.S.C. § 7401, et seq. ("CAA"), the Clean Water Act, 33 U.S.C. § 1251, et seq. ("CWA"), the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. ("RCRA"), Occupational Safety and Health Administration ("OSHA") regulations, Federal Highway Administration regulations, nuisance law, and civil rights law.

Currently before this Court are defendants' motions to strike the Environmental Protection Agency ("EPA") and its Administrator Carol Browner from the amended complaint, and to dismiss the amended complaint for lack of subject matter jurisdiction, lack of personal jurisdiction over the non-New York defendants, improper venue and failure to state a claim. Defendants also argue that the Court should decline to exercise its jurisdiction over the pendent state claims. For the following reasons, defendants' motions are granted.

Background

Plaintiff No More Tolls is a public interest organization in Washington, D.C. (Am. Compl. ¶ 9.) It is "dedicated to the protection and enhancement of the environment of the United States.... [I]t supports effective enforcement of Federal and State CAA, CWA RCRA, and other Federal and State laws." (Am.Compl. ¶ 8.) Plaintiff McKeown is the Executive Director of No More Tolls. (Am.Compl. ¶ 9.) The only information revealed about McKeown in the amended complaint is that he "has traveled defendant[s'] operated roadways in excess of twenty years and has sustained damages as a result of the operation of toll booths as described in [the] [amended] complaint." (Am.Compl. ¶ 10.)

Defendants are state authorities and their directors who are responsible for the administration of public transportation including the operation of toll booths in New York (the "New York defendants"), New Jersey (the "New Jersey defendants"), Delaware (the "Delaware defendants") and Maryland (the "Maryland defendants"). (Am.Compl. ¶¶ 8-28.)

On November 29, 1999, plaintiffs sent defendants a Notice of Intent to Sue. The Notice of Intent to Sue states that plaintiffs believe defendants are violating the CAA, CWA and RCRA by operating toll booths.

On February 3, 2000, plaintiffs filed this action by order to show cause, requesting a temporary restraining order and a preliminary injunction. Plaintiffs assert claims under the CAA, CWA, RCRA, "federal common law" nuisance, negligence and civil rights laws, and state law against defendants claiming that: (1) toll booth operators illegally slow and otherwise impede vehicular movement which unnecessarily increases toxic tailpipe emissions endangering "health and the environment"; (2) toll booth areas are "point sources" under the CWA and "cause the diminution of water quality of the surface and subterranean waters and wetland areas"; (3) toll booth operators violate the prohibition against the operation of an open dump, and "continue unpermitted discharge of pollutants into navigatable waters"; (4) toll booth operators violate "an effluent standard or limitation" by permitting discharges of leachate from toll booth locations; (5) toll booth and related operations fail to use the best practicable control technology available to reduce emissions; (6) toll booth operators are "major sources" of hazardous air pollutants causing adverse environmental effects to wildlife and aquatic life; (7) toll booth operators are "generators" of hazardous waste and violate hazardous waste standards by releasing pollutants and other substances into the air, soil, surface and ground waters in areas adjacent to the toll booths; (8) toll booth operators violate the CWA and CAA by operating without permits; and (9) toll booth operators knowingly and negligently release hazardous air pollutants into the ambient air. (Am.Compl. ¶¶ 42-56.)

Initially, plaintiffs requested that this Court enjoin defendants during the pendency of this action from "slowing or otherwise impeding the movement of vehicles to collect tolls or any other activity that pollutes the air, water or soil of the United States." On February 8, 2000, this Court held a hearing and denied plaintiffs' motion.

On February 24, 2000, plaintiffs filed an amended complaint adding the United States Environmental Protection Agency ("EPA") and EPA Administrator Carol M. Browner as plaintiffs, and the Delaware River and Bay Authority and its executive director Michael Harkins as additional defendants. In all other respects, the amended complaint is identical to the initial complaint. However, plaintiffs did not serve the amended complaint until mid-March, after defendants had filed their motions to dismiss the initial complaint. (Semancik Decl. Supp. Mot. to Strike Browner & EPA from Am. Compl. ¶ 3.)

On March 9, 2000, this Court issued an order denying plaintiffs' motion for preliminary injunctive relief and a temporary restraining order. On July 13, 2000, this Court denied plaintiffs' motion for reconsideration.

Discussion

I. Motion to Strike EPA and Carol Browner from the Amended Complaint

Defendants argue that the EPA and Browner should be stricken from the amended complaint because they did not sign the amended complaint, McKeown and No More Tolls have no authority to act on behalf of the EPA or its administrator, and the EPA is not a necessary party.

The CAA, CWA and RCRA all permit a citizen to bring a civil action to enforce those statutes on their own behalf. See 33 U.S.C. § 1365(a) ("any citizen may commence a civil action on his own behalf [under this section] ..."); 42 U.S.C. § 6972(a) ("any person may commence a civil action on his own behalf [under this section] ..."); 42 U.S.C. § 7604 (same). None of those statutes authorizes a citizen to bring an action to enforce the CAA, CWA or RCRA on behalf of the EPA or its Administrator. Moreover, McKeown and No More Tolls have not offered any reason why the EPA and Browner are necessary parties. See, e.g., Friends of the Earth v. Carey, 535 F.2d 165, 173 (2d Cir.1976) (noting that the CAA "simply obligates the citizen plaintiff to provide the EPA with notice of the ... violation and of the upcoming private enforcement suit.... The agency can then decide for itself whether or not to participate in the proceedings."); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511 F.2d 809, 814-15 (D.C.Cir.1975) ("The [CAA] citizen suit provision contemplates actions against the Administrator where he fails to perform a non-discretionary act. Alternatively, the citizen, after giving sixty days notice to the Administrator can proceed directly against the violator. When the plaintiff elects this later course, the Administrator has the right to intervene in the suit, but he is not required to be a participant in such litigation and his absence does not render the action infirm.")

Accordingly, defendants' motions to strike the EPA and Browner from the amended complaint are granted. Further, because defendants moved to dismiss the initial complaint before they were served with the amended complaint, and because the amended complaint does not materially differ from the initial complaint, defendants' motions to dismiss the initial complaint are deemed motions to dismiss the amended complaint.¹

II. Motion to Dismiss Standards

On a Rule 12 motion to dismiss, the Court generally must accept the factual allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts...