A federal judge has greenlighted a legal dispute between a Pennsylvania borough and a sewage authority that hinges on how each side is interpreting a consent decree with the U.S. Environmental Protection Agency.

The ruling in Borough of McKees Rocks v. Allegheny County Sanitary Authority (ALCOSAN) is significant because it allows the borough to seek injunctive relief to block an imminent construction project.

To comply with the EPA consent decree, ALCOSAN intends to construct a sewage-conveyance tunnel on a specific plot of land within the borders of the Borough of McKees Rocks. The Borough claims the construction is near heavily trafficked residential and commercial areas and will cause various public nuisances.

ALCOSAN also promised in the consent decree to solicit input from its customer municipalities (including the Borough) regarding their plans. However, the Borough contends that ALCOSAN unilaterally purchased property within the Borough, prepared designs, and conducted site surveys of the property to begin construction without any coordination with the Borough. Subsequently, the Borough enjoined ALCOSAN from beginning construction. ALCOSAN challenged the injunction, moving to dismiss.

ALCOSAN argued that the Borough lacked standing to sue over the consent decree because it is are an independent third party suing for enforcement of an agreement. However, federal common law provides a third party can sue so long as they are an intended third-party beneficiary.

Promise to Solicit Input

In his 25-page opinion, U.S. District Judge J. Nicholas Ranjan held that ALCOSAN’s promise to solicit and consider input from the municipalities was sufficient to establish the Borough as a third-party beneficiary. Therefore, the Borough has standing to pursue an injunction on these grounds.

Judge Ranjan also noted that a consent decree can never be a defense to ignoring local ordinances or nuisance laws. It is the party’s responsibility to maintain compliance to all relevant federal, state, and local laws. Therefore, even though the consent decree required ALCOSAN to create a sewage tunnel to be compliant, they must do so in a manner that complies to the local ordinances and state nuisance laws.

ALCOSAN also challenged the Borough’s claims of an anticipated nuisance. ALCOSAN claimed that the Borough did not sufficiently plead a nuisance. Since the case is still pre-trial, the Borough only needs to plead to the fact ALCOSAN’s construction plan could plausibly create a nuisance. The Borough alleged the construction project will cause significant noise, dust, noxious fumes, exacerbated traffic congestion, inconvenient fencing, leaving an open excavation pit and accumulating excavated spoils on the site. Judge Ranjan agreed and held these facts sufficiently pled claims of an anticipated public nuisance because they were factually plausible and there was enough evidence to conclude the nuisance was inevitable. He also acknowledged that more evidence would be required to prove this when the case progresses to trial. 

Finally, Judge Ranjan reasoned that it was pertinent to try the case before the nuisance occurs because it would decrease hardship and cost on the parties, rather than waiting for the nuisance to materialize.

For more information on consent decrees or nuisances claims in general, contact Robert W. Gundlach at rgundlach@foxrothschild.com or 215.918.3636.