PENNSYLVANIA -SLUDGE VICTIMS SUE SYNAGRO - US Dist. Court -  remands case back to York (PA) County
- Synagro arguments "frivolous" - don't pass smell test

RALPH GILBERT, et al.,  v. SYNAGRO CENTRAL, LLC,



Background
Plaintiffs (sludge victims)  filed this lawsuit exclusively alleging state common-law tort claims of negligence, private
nuisance, and trespass on July 3, 2008, in the Court of Common Pleas of York County, Pennsylvania, seeking
compensatory and punitive damages. (Doc. 18 ex. 1.) Plaintiffs reside or own property in York County,

Pennsylvania. (Id. ex. 1 ¶ 1–36.) Plaintiffs’ (sludge victims) complaint alleges that Defendants (Synagro, et al ) —real
property owners, farm operators and lessors, sludge haulers, sludge spreaders, and sludge appliers—began
stockpiling and spreading sewage sludge on roughly 220 acres of land owned by Defendant George Phillips in the
town of New Freedom, York County, Pennsylvania. (Id. ex. 1 ¶ 75.) Almost immediately thereafter, “Plaintiffs noticed
offensive odors, typically smelling like a herd of dead, rotting deer, and
suffered from running nose, burning
eyes, burning throat, respiratory distress, irritated skin, and rashes,” which progressively
worsened. (Id. ex. 1 ¶ 84.)

Defendant Synagro moved  case from York County PA Court  to US District Court, PA Middle District, claiming
"“Plaintiffs’ right to relief necessarily depends on resolution of a
substantial question of federal law—whether
Defendants violated the standard of care by applying biosolids in violation of 40 C.F.R. Part 503 [of
the Clean Water Act].” Defendants also suggest that Plaintiffs’ claims are completely preempted by
federal law. (Doc. 1, at 3.)

Defendants (Synagro, et al ) filed a Notice of Removal pursuant to 28 U.S.C. §§ 1441 1446 on August 5, 2008, stating
that “[r]emoval from state to federal court is necessary
based on complete federal preemption and a substantial
federal question.”

page 3

Plaintiffs (sludge victims) complaint alleges only state law claims. Nonetheless,  
Defendants (Synagro, et al)  
removed Plaintiffs’ action, claiming that the court had “federal question” jurisdiction because “Plaintiffs’
right to relief necessarily depends on resolution of a substantial question of federal law—whether
Defendants violated the standard of care by applying biosolids in violation of 40 C.F.R. Part 503 [of the
Clean Water Act].” Defendants also suggest that Plaintiffs’ claims are completely preempted by federal
law. (Doc. 1, at 3.)
The court has carefully reviewed  Defendants’ Notice of Removal and brief in opposition
to Plaintiffs’ Motion to Remand
and finds that both arguments lack merit.

A. Federal Question Jurisdiction

PAGE 5

"Defendants’ ( Synagro, et al ) suggestion that Plaintiffs’ right to relief “necessarily depends on resolution of a
substantial question of federal law”
is unreasonable and borders on being frivolous. Defendants’ brief in
opposition—which violates Local Rule 7.8(b)(1) in no small part thanks to the
five pages of public
relations propaganda
presented as a background to its brief on the narrow issue of federal
jurisdiction—argues,
quite disingenuously, that Plaintiffs’ complaint “directly challenge[s] the
adequacy of EPA regulations” and thereby “necessarily require[s] this court to resolve a
substantive [sic] federal issue.” (Doc. 23, at 11.)

A potential federal defense is not a necessary element of a common-law tort claim. Calling something by a
different name does not mean that it no longer stinks
. Proof of these common-law tort claims does not
necessarily involve elements of federal law as an essential component.
Defendants merely suggest that they
might raise compliance with federal regulations as a defense, but this possible defense does not
give rise to federal question jurisdiction,
Franchise Tax Bd., 463 U.S. at 10, and reeks of insincerity given
the Clean Water Act’s “saving clause” already pointed out to these Defendants in substantially similar
litigation in the Eastern District of Virginia. See Wyatt v. Susses Surry, LLC, 482 F. Supp. 2d 740, 745 (E.D.
Va. 2007) (“Even if Defendants were able to prove compliance with all state and federal regulations,
Plaintiffs could still set forth valid claims upon which relief could be granted because the federal Clean
Water Act contains a ‘savings clause,’ which has been construed by the Supreme Court to permit rather
than preclude state common-law claims.”
(citing Int’l Paper Co. v. Ouelette, 749 U.S. 481 (1987)).

[Helane's note - reference to "Wyatt v. Susses" is another sludge victims' lawsuit presently pending in
Virginia]

page 7

Plaintiffs’ (sludge victims)  common-law tort claims, giving this court jurisdiction of Plaintiffs’ action. In support of this
contention, Defendants (Synagro, et al) present an
implausible interpretation of the Supreme Court’s holding
in International Paper Company v. Ouelette. The interpretation does not pass the smell test. See, e.g., Wyatt,
482 F. Supp. 2d at 745–46.
In fact, in International Paper, all nine justices, in three separate opinions, explicitly found
that the Clean Water Act does not completely preempt a plaintiff’s state common-law tort claims. See International
Paper Co., 479 U.S. at 500 (“”Nothing in the Act prevents a court sitting in an affected State from hearing a common-
law nuisance suit . . . .”); id. (Brennan, J. concurring in part and dissenting in part) (“I concur wholeheartedly in the
Court’s judgment that the Clean Water Act (ACT), 33 U.S.C. § 1251, et seq., does not preempt a private nuisance suit
. . . .”); id. at 508–09 (Stevens, J. concurring in part and dissenting in part) (“In affirming the denial of International
Paper Company’s motion to dismiss, the Court concludes that nothing in the Clean Water Act . . . deprives a Federal

Accordingly, the court does not have jurisdiction.

[Synagro, et al, loses - Pennsylvania sludge victims win - their case is remanded from US district court
back to York County, PA court which is where they filed it in the first place.]
Federal-Court-Remand-and--Costs-Order-1.pdf