HARTEL v. BEAZER EAST, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KELLY K. HARTEL and ROBERT L. )

HARTEL, JR., )

)

Plaintiffs, )

)

v. ) Civil Action No. 23-1629

)

BEAZER EAST, INC., in its own right )

and as a successor in interest to Koppers )

Company, Inc., and other related )

companies including Beazer USA, Inc. and )

Beazer, PLC.; INDSPEC CHEMICAL )

CORPORATION; INTERSTATE )

CHEMICAL COMPANY, INC., )

KOPPERS, INC.; OCCIDENTAL )

CHEMICAL CORPORATION; and )

OCCIDENTAL PETROLEUM )

CORPORATION, )

)

Defendants. )

MEMORANDUM OPINION

Presently before the Court is the Motion to Remand and brief in support (Docket Nos. 6,

7) filed by Plaintiffs Kelly K. Hartel (“Kelly Hartel”) and Robert L. Hartel, Jr. (“Robert Hartel”)

(collectively, “Plaintiffs”), the response in opposition (Docket No. 14) filed by Defendants

Occidental Chemical Corporation (“OCC”) and INDSPEC Chemical Corporation (“INDSPEC”)

and joined in by other Defendants, and Plaintiffs’ reply (Docket No. 21). For the reasons set forth

herein, Plaintiffs’ motion will be granted.

I. BACKGROUND

This lawsuit, originally filed in the Court of Common Pleas of Butler County,

Pennsylvania, alleges that Plaintiffs were exposed over a period of years to various toxic airborne

emissions from a chemical plant located in Petrolia, Butler County, Pennsylvania (the “Petrolia

Facility”).1 (Docket No. 1-1, ¶¶ 32-34). According to Plaintiffs’ Complaint, beginning in 1983,

Kelly Hartel was exposed to toxic chemicals, dioxins, dibenzofurans, and other harmful materials

being emitted from the Petrolia Facility, which was located near her schools and home. (Id. ¶ 33).

Plaintiffs, who are husband and wife, currently reside in Petrolia, Pennsylvania, and they further

allege that from the time they purchased their home in 1997 through 2017, they were exposed to

these same chemicals. (Id. ¶¶ 1, 34). Plaintiffs aver that as a result of such exposure, Kelly Hartel

developed Graves Disease and Hashimoto’s Disease, and Robert Hartel has suffered a loss of

consortium. (Id. ¶¶ 49, 55, 174).

In addition to Defendants OCC and INDSPEC, the Complaint also names as Defendants

Beazer East, Inc., Interstate Chemical Company, Inc., Koppers, Inc., and Occidental Petroleum

Corporation (collectively, “Defendants”). (Id. ¶¶ 3-8). Plaintiffs allege that five of the named

Defendants owned and/or operated the Petrolia Facility from the early 1940’s until the plant ceased

operation in 2017, and that INDSPEC currently owns the Petrolia Facility. (Id. ¶¶ 22, 32).

Plaintiffs’ Complaint alleges sixteen Counts, all under Pennsylvania law: (I) negligence,

(II) gross negligence, (III) gross negligence/reckless conduct, (IV) fraudulent concealment,

(V) fraudulent misrepresentation, (VI-VII) negligence per se, (VIII-X) strict liability, (XI) private

nuisance, (XII) battery, (XIII) trespass, (XIV) loss of consortium, (XV) medical monitoring, and

(XVI) exemplary and punitive damages. (Docket No. 1-1). Defendants INDSPEC and OCC

removed the lawsuit to this Court, asserting that the Court has subject matter jurisdiction over this

action because it involves a question of federal law, in connection with the federal Clean Air Act,

within this Court’s original jurisdiction under 28 U.S.C. § 1331. (Docket No. 1). Plaintiffs

1 The Court’s brief summary of the factual background of this case is derived from the allegations set forth in

Plaintiffs’ Complaint. (Docket No. 1-1).

subsequently filed their Motion to Remand this action, which has been fully briefed by the parties

and is ripe for decision by the Court.2

II. DISCUSSION

A. Regulatory Background3

Defendants argue that this action involves a question of federal law under the Clean Air

Act, 42 U.S.C. § 7401 et seq. (the “CAA”), which is “a comprehensive federal law that regulates

air emissions under the auspices of the United States Environmental Protection Agency” (the

“EPA”). (Docket No. 14 at 6 (citing Bell v. Cheswick Generating Station, 734 F.3d 188, 190 (3d

Cir. 2013)). Under the CAA, the EPA is responsible for regulating the emission of hazardous air

pollutants, see 42 U.S.C. § 7412, and establishing National Ambient Air Quality Standards

(“NAAQS”) that specify the maximum permissible concentration of certain pollutants in the

ambient air. See Bell, 734 F.3d at 190 (citing 42 U.S.C. § 7409(b)(1)). However, the EPA itself

generally does not regulate individual sources of such emissions, and instead the authorized states

are responsible for ensuring compliance with NAAQS. See id. (citing 42 U.S.C. § 7410(a)(1)).

Accordingly, “each state is required to create and submit to the EPA a State Implementation Plan

(‘SIP’) which provides for implementation, maintenance, and enforcement of NAAQS within the

state.” Id. (citing 42 U.S.C. § 7410(a)(1)). “All SIPs must be submitted to the EPA for approval

before they become final, and once a SIP is approved, its requirements become federal law and are

fully enforceable in federal court.” Id. (internal quotation marks and citations omitted). Title V

of the CAA Amendments of 1990 established an operating permit system, see 42 U.S.C. §§ 7661

2 Plaintiffs indicated in their Motion to Remand that “[a]ll Defendants oppose this Motion.” (Docket No. 6 at

1). Notices of Joinder in OCC and INDSPEC’s opposition to the Motion to Remand were subsequently filed by

Defendants Occidental Petroleum Corporation, Beazer East, Inc., and Koppers, Inc. (Docket Nos. 15, 17, 18).

3 The Court briefly discusses herein the regulatory framework to the extent it is relevant to Plaintiffs’ Motion

to Remand.

to 7661f, and the states, in enforcing the SIPs, must “implement a mandatory permit program that

limits the amounts and types of emissions that each stationary source is allowed to discharge.” Id.

(citing 42 U.S.C. §§ 7661a(d)(1), 7661c(a)).

As required by the CAA, Pennsylvania adopted a SIP, which was approved by the EPA.

See Concerned Citizens of Bridesburg v. City of Phila., 643 F. Supp. 713, 715 (E.D. Pa. 1986)

(citing 40 C.F.R. § 52.2020). The Pennsylvania SIP incorporates the Pennsylvania Air Pollution

Control Act, 35 P.S. § 4001 et seq. – to which Plaintiffs cite in their Complaint and in their brief

in support of their Motion to Remand (Docket No. 7) – as well as other state regulations. See id.

Additionally, Section 112 of the CAA requires the EPA to promulgate National Emission

Standards for Hazardous Air Pollutants (“NESHAPS”). See 42 U.S.C. § 7412; United States v.

Unitank Terminal Serv., 724 F. Supp. 1158, 1160 (E.D. Pa. 1989). The NESHAPS promulgated

at 40 C.F.R. Parts 61 and 63 were adopted in their entirety by the Pennsylvania Department of

Environmental Protection (the “PA DEP”) and were incorporated into state regulations. See 25

Pa. Code §§ 124.3, 127.35(b). Defendants note that a NESHAP for the Miscellaneous Organic

Chemical Manufacturing Industry (see 40 C.F.R. Part 63 Subpart G) governs the Petrolia Facility.4

(Docket No. 14 at 7).

B. Defendants’ Removal and Plaintiffs’ Motion to Remand

“Federal courts have limited jurisdiction” and “may decide only cases or controversies that

the Constitution and Congress say we may decide.” Maglioli v. Alliance HC Holdings LLC, 16

F.4th 393, 413 (3d Cir. 2021). “Any civil action brought in state court may be removed by the

defendant to the federal district court in the district where such action is pending, if the district

court would have original jurisdiction over the matter.” U.S. Express Lines, Ltd. v. Higgins, 281

4 In this regard, Defendants cite to a letter (attached to their brief), dated August 17, 1994, from INDSPEC to

Ms. Carol M. Browner, Administrator, U.S. Environmental Protection Agency. (Docket No. 14-4).

F.3d 383, 389 (3d Cir. 2002) (citing 28 U.S.C. § 1441(a)). It is the removing party who bears the

burden of establishing that removal of a case was proper. See Frederico v. Home Depot, 507 F.3d

188, 193 (3d Cir. 2007). Furthermore, the removing party “carries a heavy burden of showing that

at all stages of the litigation the case is properly before the federal court,” and “[r]emoval statutes

are to be strictly construed, with all doubts to be resolved in favor of remand.” Manning v. Merrill

Lynch Pierce Fenner & Smith, Inc., 772 F.3d 158, 162 (3d Cir. 2014) (quoting Brown v. Jevic, 575

F.3d 322, 326 (3d Cir. 2009)); see 28 U.S.C. § 1331. In order to “bring a case within the [federal-

question removal] statute, a right or immunity created by the Constitution or laws of the United

States must be an element, and an essential one, of the plaintiff’s cause of action,” so “a case may

not be removed to federal court on the basis of a federal defense.” Rivet v. Regions Bank of La.,

522 U.S. 470, 475 (1998) (internal quotation marks and citations omitted).

Generally, a plaintiff is considered to be the master of his complaint, and a court need not

look beyond a complaint’s well-pleaded allegations to determine whether it has jurisdiction over

a plaintiff’s claims. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); Franchise Tax Bd.

v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10 & n.9 (1983). However, as the parties

here agree, federal jurisdiction over state law claims can exist under certain limited circumstances,

including those set forth in Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S.

308 (2005), and its progeny. In Grable, the Supreme Court described a type of “arising under

jurisdiction,” where “federal-question jurisdiction will lie over state-law claims that implicate

significant federal issues.” 545 U.S. at 312. This substantial federal question doctrine “captures

the commonsense notion that a federal court ought to be able to hear claims recognized under state

law that nonetheless turn on substantial questions of federal law, and thus justify resort to the

experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.”5 Id.;

see also Schulze v. Legg Mason Wood Walker, Inc., 865 F. Supp. 277, 280 (W.D. Pa. 1994) (noting

that this doctrine, along with complete preemption, is one of two exceptions to the well-pleaded

complaint rule).

A few years later, in Gunn v. Minton, the Supreme Court explained that the parameters of

the “special and small category” of cases in which “arising under” jurisdiction lies could be

discerned by asking the question, “Does the ‘state-law claim necessarily raise a stated federal issue,

actually disputed and substantial, which a federal forum may entertain without disturbing any

congressionally approved balance of federal and state judicial responsibilities?’” 568 U.S. 251,

258 (2013) (quoting Empire Healthcare Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006),

and Grable, 545 U.S. at 314); see James v. McManus, Civ. Action No. 24-2232, 2024 WL

3238131, at *6 (E.D. Pa. June 27, 2024); NLMK Pennsylvania, LLC v. United States Steel Corp.,

Civ. Action No. 2:21-cv-273, 2021 WL 3682147, at *8 (W.D. Pa. Aug. 19, 2021). Breaking this

standard down into four requirements, a court must determine whether a federal issue is

“(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in

federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568 U.S.

at 258. Where these requirements are all met, a federal court’s “jurisdiction is proper because

there is a ‘serious federal interest in claiming the advantages thought to be inherent in a federal

5 In Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., the Third Circuit summarized Grable as follows:

Grable sued under state law to quiet title. Five years prior to the suit, the Internal Revenue

Service (“IRS”) seized Grable’s land to satisfy a tax deficiency. The IRS then sold that land to

the defendant. Grable argued that the IRS did so without giving sufficient notice as required by

federal law. Because “whether Grable was given notice within the meaning of the federal statute

is ... an essential element of its quiet title claim,” the Supreme Court held that the issue of what

notice was required under federal law was necessarily raised.

772 F.3d 158, 163 (2014) (quoting Grable, 545 U.S. at 315 (emphasis added)).

forum,’ which can be vindicated without disrupting Congress’s intended division of labor between

state and federal courts.” Id. (quoting Grable, 545 U.S. at 313).

In accordance with Grable and Gunn, the Third Circuit instructs that a “small number of

state claims may arise under federal law if they raise ‘significant federal issues.’” Maglioli v.

Alliance HC Holdings, LLC, 16 F.4th at 413 (quoting Grable, 545 U.S. at 312)). The Third Circuit,

like some other circuits, “considers a federal issue is ‘necessarily raised’ when it is a necessary

element of one of the well-pleaded state claims.” James v. McManus, 2024 WL 3238131, at *7

(internal quotation marks omitted) (citing City of Hoboken v. Chevron Corp., 45 F.4th 699, 706-09

(3d Cir. 2022); Minnesota by Ellison v. American Petroleum Inst., 63 F.4th 703, 711 (8th Cir. 2023);

and Solomon v. St. Joseph Hosp., 62 F.4th 54, 64 (2d Cir. 2023)); see also NLMK Pa., LLC, 2021

WL 3682147, at *9 (explaining that “[f]ederal issues are necessarily raised where ‘vindication of

a right under state law must necessarily turn on some construction of federal law’” (quoting

Manning, 772 F.3d at 163)). “‘Under the analysis set forth in Gunn and Manning, the court must

look at the elements of the state-law causes of action’ to examine whether they turn on a

construction of federal law.” NLMK Pa., LLC, 2021 WL 3682147, at *9 (quoting City of

Greensburg v. Wisneski, 75 F. Supp. 3d 688, 694 (W.D. Pa. 2015)).

In moving to remand the present case, Plaintiffs argue that their Complaint alleges only

violations of state law and neither alleges nor references any violation of federal law. Plaintiffs

contend that their allegations are rooted in false statements made on state forms that demonstrate

Defendants’ knowledge that their processes were toxic. Plaintiffs further assert that their claims

involve state laws that will not require substantial interpretation by a court, and that if interpretation

is required, Pennsylvania state courts are the appropriate courts to do so.

In opposing remand, Defendants contend that they removed this case because Plaintiffs’

claims are predicated, at least in part, on alleged violations of federal law. Specifically, Defendants

argue that the resolution of certain claims asserted by Plaintiffs, though framed as claims under

state law, will require a court to interpret and apply many years’ worth of federal environmental

laws and their implementing regulations. In this regard, Defendants first argue that the Grable

factors are met as to, at a minimum, Plaintiffs’ two fraud-based tort claims – fraudulent

concealment and fraudulent misrepresentation – which are based upon allegedly false statements

made on the Petrolia Facility’s Title V permit and renewal applications submitted to the PA DEP.6

Second, Defendants contend that the Grable factors are also met as to Plaintiffs’ claims of private

nuisance and trespass because those claims are described as “continuing in nature.” (Docket No.

14 at 13). Defendants argue that since the Petrolia Facility ceased operations in 2017, such

allegations necessarily implicate the application of federal air pollution regulations before the

facility’s closure, as well as the EPA’s Final Remedy for the facility post-closure. Third,

Defendants assert that certain allegations in the Complaint fall within the period of time during

which a Consent Decree involving the Petrolia Facility was in place, so some claims will require

that a federal statute and regulations be interpreted to determine whether Defendants were in

violation of that agreement.7 In their reply, Plaintiffs argue that the Grable factors are not met as

to any of the four claims singled out by Defendants, and that the Complaint does not allege

violations of the Consent Decree cited by Defendants.

6 Defendants assert that the Court also has supplemental jurisdiction over the remaining claims in the

Complaint because those claims “are ‘so related’ that they ‘form part of the same case or controversy under Article

III of the United States Constitution.’” (Docket No. 14 at 10 n.7 (quoting Schulze v. Legg Mason Wood Walker, Inc.,

865 F. Supp. 277, 284 (W.D. Pa. 1994)). See 28 U.S.C. § 1367.

7 Defendants indicate that the emissions from the Petrolia Facility at issue in this case have already been the

subject of a lawsuit brought by the United States on behalf of the EPA and the PA DEP, and that the parties to that

action entered into a Consent Decree as a result. (Docket No. 14 at 8 (citing United States v. INDSPEC Chem. Corp.,

Civ. Action No. 2:15-cv-01252-JFC (W.D. Pa. Sept. 24, 2015)).

For the following reasons, the Court finds that Defendants have not demonstrated that the

Grable factors are met as to any of Plaintiffs’ state tort claims, and accordingly, the Court finds

that Defendants have not met their burden of showing that the Court has subject matter jurisdiction

over this case.

C. Analysis under Grable

1. Whether Plaintiffs’ Fraud-Based Claims Necessarily Raise Federal Issues

First, Defendants argue that Plaintiffs’ fraud-based state law claims, fraudulent

misrepresentation and fraudulent concealment, necessarily raise federal issues. The elements of a

claim for fraud under Pennsylvania law are as follows:

(1) a representation; (2) which is material to the transaction at hand; (3) made

falsely, with knowledge of its falsity or recklessness as to whether it is true or

false; (4) with the intent of misleading another into relying on it; (5) justifiable

reliance on the misrepresentation; and (6) the resulting injury was proximately

caused by the reliance.

Vavro v. Albers, No. 2:05CV321, 2006 WL 2547350, at *16 (W.D. Pa. Aug. 31, 2006) (citing

Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994) (setting forth the elements of intentional

misrepresentation or fraud), and Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590-91 (Pa.

Super. Ct. 2004) (citing the elements of fraud and noting that the allegations in that case included

incidents of misrepresentation, false statements, omissions, and suppressions)). A claim for fraud

based on concealment includes at least these same elements. See American Planned Communities,

Inc. v. State Farm Ins. Co., 28 F. Supp. 2d 964, 968 (E.D. Pa. 1998) (discussing variants of fraud

and explaining that “[c]oncealment alone may create a sufficient basis for finding that a party

engaged in fraud so long as the other elements of fraud are present.”); Gnagey Gas & Oil Co., Inc.

v. Pennsylvania Underground Storage Tank Indemnification Fund, 82 A.3d 485, 500-03 (Pa.

Commw. Ct. 2013) (discussing claims of fraud involving a misrepresentation in the form of a

positive assertion or concealment of that which should have been disclosed).8

Defendants contend that, although the allegations in the Complaint are somewhat broad

and vague – and are thus difficult to fit into the fraud-based claims’ elements – Plaintiffs clearly

plead that the injury element of such claims is their exposure to “toxic emissions spewing from the

defendants’ facility.” (Docket No. 14 at 11-12 (quoting Docket No. 1-1, ¶ 97)). Moreover,

Defendants assert that the “entire thrust” of the Complaint is that Plaintiffs were injured by alleged

toxic emissions from the Petrolia Facility: “This action involves injuries to Plaintiffs caused by

toxic airborne emissions released from a chemical plant located in Petrolia . . . .” (Id. at 12 (quoting

Docket No. 1-1, ¶ 32)). Defendants argue that because such emissions are regulated by the Clean

Air Act and NESHAPS, the injury element of Plaintiffs’ fraud-based claims turns on resolving

issues under federal law. (See id.). Defendants do not further elaborate on this point to persuade

the Court, however, nor is it plainly evident to the Court why this would be so. Accordingly, the

Court does not agree that proving the element of injury in the context of Plaintiff’s fraud-based

claims necessarily turns on some construction of federal laws.

Defendants argue more fully that Plaintiffs’ fraud-based claims necessarily raise federal

issues because those claims’ other elements all rest, at least in part, on representations allegedly

made by Defendants in relation to the Petrolia Facility’s Title V permit application for activities

and emissions. (Docket No. 14 at 12). Defendants contend that, contrary to Plaintiffs’ framing of

8 Additionally, Defendants suggest that, to the extent a claim for fraud based on “mere silence” might be

alleged here, such claim could assert nondisclosure under Section 551 of the Restatement (Second) of Torts. (Docket

No. 14 at 11 (citing Gnagey Gas & Oil Co., Inc. v. Pennsylvania Underground Storage Tank Indemnification Fund,

82 A.3d 485, 500-03 (Pa. Commw. Ct. 2013), in which the Pennsylvania Commonwealth Court discussed types of

fraud claims, including the ways in which Pennsylvania law recognizes a difference between active concealment and

mere silence in the context of common law fraud, referencing § 550 and § 551 of the Restatement (Second) of Torts)).

Plaintiffs do not respond to Defendants’ comment in this regard, and they simply argue that all elements of their causes

of action for fraudulent misrepresentation and fraudulent concealment could be met without adjudicating any federal

issue. (Docket No. 21 at 3).

the allegations in the Complaint, Title V and permitted emissions are a matter of federal law under

Pennsylvania’s SIP. (See id.). In response, Plaintiffs first note that, “‘[c]ase law in the Third

Circuit establishes that a complaint that asserts a state law claim based on the alleged violation of

federal regulations is insufficient to necessarily raise a federal issue.’” (Docket No. 21 at 2

(quoting Boyle v. Meyer, No. 2:21-CV-00694-CCW, 2021 WL 6051439, at *5 (W.D. Pa. Dec. 20,

2021) (internal quotation marks and citations omitted)), and citing Kalick v. Northwest Airlines

Corp., 372 F. App’x 317 (3d Cir. 2010)). Plaintiffs further argue that, regardless of whether

Defendants violated federal regulations, a jury could find that Defendants fraudulently

misrepresented or fraudulently concealed the totality of toxic emissions under Pennsylvania

common and statutory law (e.g., the Pennsylvania Air Pollution Control Act is cited in the

Complaint and in briefing), and that there is no need to delve into federal law at all. (See id. at 3).

Additionally, Plaintiffs note that Defendants’ adherence (or failure to adhere) to a federal statute

or regulation may be invoked as a defense in this action, but a defense does not justify removal of

the case to federal court. (See id. at 2-3).

Upon consideration of the parties’ arguments in this regard, the Court agrees with

Plaintiffs. Defendants argue that, to prove the fraud-based claims alleged in the Complaint,

Plaintiffs will need to establish that Defendants violated the SIP, and in support of that argument

Defendants point out that courts, in various different circumstances, have held SIPs to be a matter

of federal law. (Docket No. 14 at 12 (citing Bell v. Chaswick Generating Station, 734 F.3d 188,

190 (3d Cir. 2013) (holding that “once a SIP is approved, its requirements become federal law and

are fully enforceable in federal court” (internal quotation marks and citation omitted)), United

States v. Congoleum Corp., 635 F. Supp. 174, 177 (E.D. Pa.) (holding that “SIP, once approved

by EPA, is federal law”), on reconsideration in part, 646 F. Supp. 1142 (E.D. Pa. 1986), and Atalig

v. Mobil Oil Mariana Islands, Inc., Case No. CV 10-10, 2010 WL 11553726, at *3 & n.2 (D.N.

Mar. I. Aug. 31, 2010) (denying a motion to remand where the plaintiff’s state tort law claims were

predicated solely upon allegations of violations of the CAA and NESHAP, but also noting that the

situation might be different if the plaintiff’s claims relied upon the violation of any other statutes

or regulations – and that federal question jurisdiction is not triggered when certain conduct could

violate both state and federal laws))).

However, none of the cases cited by Defendants are instructive here since, regardless of

whether an EPA-approved SIP is considered “a matter of federal law” and is enforceable in federal

court, Plaintiffs are not required to prove that the SIP was violated in order to prove an essential

element of their fraud-based state law claims. Based on the allegations in the Complaint, Plaintiffs

aver that Defendants made misrepresentations (and concealments) regarding their processes and

emissions, citing the “Title V”9 permit applications and renewal applications submitted to the PA

DEP for the Petrolia Facility. (Docket No. 1-1 ¶¶ 72, 103). Although evidence of such

misrepresentations might also show that the SIP was violated, proof of the SIP violation is not a

necessary element of Plaintiff’s fraud-based claims. Defendants contend that federal law (citing

the CAA, NESHAP, and SIP) must be applied and interpreted for Plaintiffs to prevail on their

fraud-based claims, but that is simply not so.10 As Plaintiffs assert, a jury could find that

Defendants adhered to federal requirements, yet still find that Defendants fraudulently

misrepresented or fraudulently concealed the totality and nature of regulated or unregulated toxic

9 The Complaint alleges that Defendants filed false answers on “Title V” permit applications, or intentionally

deceived the PA DEP in their “Title V” applications, sometimes offsetting the term “Title V” with quotation marks

when referring to statements made on the state permit application forms submitted to the PA DEP, a state agency.

(Docket No. 1-1, ¶¶ 80, 103). The Court finds that Plaintiffs’ reference to “Title V” in this manner within such

allegations is not sufficient to confer federal question jurisdiction over this matter.

10 Notably, Defendants do not argue that Plaintiffs’ claims are completely preempted here by federal law, stating

that “federal questions are presented on the face of the complaint without regard to complete preemption.” (Docket

No. 14 at 6 n.3).

emissions under Pennsylvania law, that one or more of those emissions polluted their property or

persons without permission, and that those emissions were a proximate cause of harm they

sustained. The Court agrees that “state law claims based on conduct that is also regulated by

federal law does not necessarily give rise to federal question jurisdiction,” so a complaint can refer

to both federal and state regulations, while alleging claims under state law. McGuire v. Palmerton

Hosp., Civ. Action No. 12-1718, 2012 WL 2362488, at *3 (E.D. Pa. June 20, 2012) (emphasis

added); see also Hirshbach v. NVE Bank, 496 F. Supp. 2d 451, 455 (D.N.J. 2007) (“A state law

cause of action does not give rise to a substantial and disputed question of federal law simply

because it is predicated on conduct regulated by federal law.”).

As the elements of Plaintiffs’ fraud-based claims can be established without adjudicating

any federal issue, Defendants’ argument – that a jury could not find that Defendants fraudulently

misrepresented (or fraudulently concealed) the Petrolia Facility’s toxic emissions under

Pennsylvania law, without necessarily delving into federal law to determine that the SIP was

violated here – is not persuasive. Defendants may certainly choose to raise their obligations under

and/or their compliance with federal laws in defending against Plaintiffs’ claims, but, as previously

noted, the existence of a defense involving federal law may not be the basis for removing an action

to federal court. See Rivet v. Regions Bank of La., 522 U.S. at 475; see also MHA LLC v.

HealthFirst, Inc., 629 F. App’x 409, 413 (3d Cir. 2015) (explaining that the fact that a federal law

may “‘shape or even limit the remedy that Plaintiff may obtain’ does not mean that federal law is

a necessary component of the cause of action” (quoting Veneruso v. Mount Vernon Neighborhood

Health Ctr., 933 F. Supp. 2d 613, 626 (S.D.N.Y. 2013), aff’d 586 F. App’x 604 (2d Cir. 2014))).

The Court therefore concludes that a determination of Plaintiffs’ fraudulent

misrepresentation and fraudulent concealment claims does not necessarily rely on evaluating

whether alleged statements made by Defendants on the Petrolia Facility’s “Title V” permit and

renewal application forms violated federal law, and thus such claims do not necessarily turn on a

construction of federal law. Accordingly, the Court finds that Defendants have not met their

burden of showing that Plaintiffs’ fraud-based claims necessarily raise federal issues, and thus

Defendants have not shown that the first Grable factor is met as to such claims.

2. Whether Plaintiffs’ Claims for Private Nuisance and Trespass Necessarily

Raise Federal Issues

Second, Defendants argue that Plaintiffs’ private nuisance and trespass claims necessarily

raise federal issues. In arguing that the Court has subject matter jurisdiction over such claims,

however, Defendants do not specifically address the elements of those claims under Pennsylvania

law. Instead, Defendants argue broadly that such claims are alleged in the Complaint to be

“continuing in nature,” which “necessarily implicates not only questions of the application of

federal hazardous air pollution regulations to the Petrolia Facility’s operations before its closure,

but also the EPA’s Final Remedy for the Petrolia Facility regarding post-closure management of

the Petrolia Facility.” (Docket No. 14 at 13). Stated differently, Defendants contend that questions

of federal law are raised in such claims: “for pre-closure activities,” which entails the question

“whether Defendants were compliant with the requirements of EPA regulations regarding

hazardous air emissions”; and “for post-closure activities,” which entails “whether the EPA’s Final

Remedy for site remediation involving the Petrolia Facility accomplishes its intended objectives

for the Petrolia Facility.” (Id. at 3).

In response to these arguments, Plaintiffs argue again that, to prove their claims, they need

only prove the elements required under Pennsylvania law for each count alleged in the Complaint,

and that resolution of these additional issues raised by Defendants is not required. (Docket No. 21

at 2). Plaintiffs also assert that “Defendants’ adherence or failure to adhere to any federal statute

or [agreement, etc.] is at best a defense and in no way creates a necessary federal issue as required

under Grable element #1.” (Id. at 3). Plaintiffs argue that the items that Defendants raise

(including a “Corrective Action Plan”11 and the “Enhanced Leak Detection And Repair Program

. . . attached to the Consent Decree” at Appendix A12 – which Defendants assert “will necessarily

require the application of federal law to determine compliance” (Docket No. 14 at 13-15)) – are

only intended to confuse and mislead the Court. (Docket No. 21 at 4-5). Plaintiffs contend that

they do not allege in the Complaint that any plan, agreement, or federal statute was violated, nor

is it necessary to establish that such a violation in order to prove any element of their private

nuisance or trespass claims under state law.

Turning to consideration of the elements of these claims under Pennsylvania law, a “private

nuisance exists when a person’s conduct invades ‘another’s interest in the private use and

enjoyment of land,’ and that invasion is either intentional and unreasonable or unintentional but

negligent.” Baptiste v. Bethlehem Landfill Co., 965 F.3d 214, 222-23 (3d Cir. 2020) (quoting

Youst v. Kecks Food Serv., Inc., 94 A.3d 1057, 1072 (Pa. Super Ct. 2014) (citing, at length, the

Restatement (Second) of Torts § 822)). Trespass under Pennsylvania law “is a strict liability tort,

‘both exceptionally simple and exceptionally rigorous,’ Prosser on Torts at 63 (West, 4th ed.

1971),” and is defined as an “‘unprivileged, intentional intrusion upon land in possession of

another.’” Boring v. Google Inc., 362 F. App’x 273, 280 (3d Cir. 2010) (quoting Graham Oil Co.

v. BP Oil Co., 885 F. Supp. 716, 725 (W.D. Pa. 1994) (citing Kopka v. Bell Tel. Co., 91 A.2d 232,

235 (Pa. 1952))); see also Muhammad v. United States, 884 F. Supp. 2d 306, 316 (E.D. Pa. 2012)

11 Defendants state that after the Petrolia Facility ceased operations in 2017, it was subject to a Corrective

Action Program of the EPA under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq.,

which “creates a framework for the proper management of hazardous and non-hazardous solid waste.” (Docket No.

14 at 7-8, 14).

12 Docket No. 14-2, App. A.

(“Because a defendant need not have the purpose or intent of committing an unlawful trespass,

trespass is appropriately defined as a strict liability tort.”).

The Court agrees with Plaintiffs that their claims of private nuisance and trespass do not

necessarily raise the federal issues cited by Defendants. Defendants argue generally (without

directly addressing the claims’ elements) that, to prove these claims, a factfinder will have to

consider both whether Defendants were compliant with the requirements of EPA regulations

regarding hazardous air emissions, and whether the EPA’s Final Remedy for site remediation

involving the Petrolia Facility accomplishes its intended objectives for that facility. The Court

disagrees. Here again, Plaintiffs do not allege any violation of a Corrective Action Plan or the

Enhanced Leak Detection And Repair Program, cited by Defendants, but in proving their private

nuisance and trespass claims, evidence might also show that Defendants did not comply with the

relevant EPA regulations or that the site remediation for the Petrolia Facility has not accomplished

its intended objectives. However, proof of such non-compliance or failure of the site remediation

is not a required element of such claims. Also, Defendants may choose to show that they did

comply with any relevant agreements, regulations, or site remediation plans in defending against

Plaintiffs’ claims, but, as previously noted, a defense does not justify a case’s removal to federal

court, nor does the fact that a federal law may shape or limit a remedy mean that the law is a

necessary component of a cause of action. See MHA LLC, 629 F. App’x at 413. Accordingly, the

Court finds that Defendants have not shown that proving Plaintiffs’ private nuisance or trespass

claims necessarily raises federal issues, and thus Defendants have not met their burden of showing

that the first Grable factor is met as to such claims.

3. Whether Claims of Conduct in Violation of the Consent Decree Necessarily

Raise Federal Issues

Last, Defendants note, somewhat generally, that the Complaint alleges several times –

among items in a lengthy list of alleged process and emissions failures – that Defendants “failed

to implement adequate leak detection protocols and implement adequate repair requirements.”

(Docket No. 14 at 14 (quoting Docket No. 1-1, ¶ 59)). Defendants argue that allegations of such

conduct fall within the period of time during which the Consent Decree was in place, and that,

because any such conduct is “directly covered by” the Consent Decree, “these claims require an

interpretation of federal statute and regulations as to whether Defendants were in violation of the

Consent Decree.” (Id.). In response, Plaintiffs argue that they do not allege any violation of the

Consent Decree, they were not parties to the Consent Decree, and to the extent Defendants wish

to raise the issue of the Consent Decree (which is not in the Complaint), it is nothing more than a

defense. (Docket No. 21 at 4-7).

The Court agrees with Plaintiffs. First, Defendants do not link this argument regarding the

Consent Decree to any specific claim in the Complaint, so, although it is Defendants’ burden to

prove that removal is proper, it is unclear to the Court to which of the sixteen Counts this argument

might apply. Defendants also do not explain why Plaintiffs would have to show that the Consent

Decree was violated in order to prove any of their claims. Moreover, nowhere in the Complaint

do Plaintiffs allege that Defendants violated the Consent Decree, nor does the Complaint rely upon

the Consent Decree, and a defendant may not simply inject federal issues that are not in the

complaint. See Caterpillar Inc. v. Williams, 482 U.S. 386, 399 (1987) (“[A] defendant cannot,

merely by injecting a federal question into an action that asserts what is plainly a state-law claim,

transform the action into one arising under federal law, thereby selecting the forum in which the

claim shall be litigated.”). Here again, while Defendants may choose to offer evidence of

compliance with the Consent Decree as a defense to certain claims in this matter, such a defense

is not sufficient to invoke this Court’s federal jurisdiction over Plaintiffs’ state law claims.

Accordingly, the Court finds that Defendants have not shown that Plaintiffs’ allegations of conduct

falling within the period during which the Consent Decree was in place necessarily raise federal

issues.13

4. Whether the Remaining Grable Elements Are Met Here

Even if the Court were to find that Plaintiffs’ claims do necessarily raise federal issues –

which it does not – Defendants have still not shown a basis upon which the Court could find that

the remaining Grable factors are met here. In considering whether federal issues are “actually

disputed and substantial,” the second and third Grable elements, collectively, “the Supreme Court

has distinguished cases such as Grable that present a ‘nearly pure issue of law’ that would govern

numerous other cases, from those that are ‘fact-bound and situation-specific.’” MHA LLC, 629 F.

App’x at 413 (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 700-01

(2006)); Boyle v. Meyer, No. 2:21-CV-00694-CCW, 2021 WL 6051439, at *5 (W.D. Pa. Dec. 20,

2021); see also Draper v. Center for Organ Recovery & Educ., No. 2:10-cv-181, 2010 WL

1444860, at *3 (W.D. Pa. Apr. 8, 2010) (noting that under Grable and later cases, including

Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804 (1986), “a case is removable only if it

presents a context-free inquiry into the meaning of a federal law”). Of the federal issues that

Defendants suggest are necessarily raised in this case – whether Defendants violated a federal law

that they cite; whether Defendants violated EPA regulations regarding air emissions or whether

13 Additionally, Defendants note that since “the Complaint is so expansive and vague, it is not possible to

identify every federal question implicated,” and that “once the allegations are more focused, additional federal

questions will likely arise.” (Docket No. 14 at 3 n.2). However, in ruling on Plaintiff’s motion to remand, the Court

cannot rely on unidentified federal questions that are likely to arise from possible amended allegations, because a

complaint must be examined as it exists at the time of removal in order to determine whether it states a federal claim.

See Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939).

the Final Remedy for site remediation was adequate; or whether Defendants violated a Consent

Decree – all such issues involve “a ‘fact-bound and situation specific’ inquiry that does not present

a ‘substantial’ question of federal law that is significant to the federal system as opposed to only

the parties.” Boyle, 2021 WL 6051439, at *5 (quoting MHA LLC, 629 F. App’x at 413, and citing

Benjamin v. JBS S.A., 516 F. Supp. 3d 463, 470 (E.D. Pa. 2021) (noting that citation to OSHA and

CDC guidelines, and how they applied to the defendant’s conduct, did not show that any federal

issue was actually disputed)).

As to the second Grable element specifically, whether this case presents a federal issue

that is “actually disputed,” Defendants cite generally to federal laws including the CAA and related

regulations (as well as the Consent Decree and Corrective Action Plan regarding the Petrolia

Facility), but Defendants have not elaborated on any specific language of a federal statute,

regulation, or other federal requirement that is in dispute. See MHA LLC, 629 F. App’x at 414

(“The parties have not identified a dispute over the meaning of particular statutory text; rather [the

defendant] generally avers that the parties disagree over the application of the [statute] to their

situation.”); see Benjamin, 516 F. Supp. 3d at 470. Thus, Defendants have not presented the Court

“‘with a discrete federal issue that is dispositive of the case and would be controlling in numerous

other cases.’” Benjamin, 516 F. Supp. 3d at 470 (quoting MHA LLC, 629 F. App’x at 414 (internal

quotation marks omitted) (citing Empire Healthchoice, 547 U.S. at 700))). The Court therefore

finds that Defendants have not shown that a federal issue is actually disputed here. See MHA LLC,

629 F. App’x at 414; Benjamin, 516 F. Supp. 3d at 470.

As to the third Grable element specifically, Defendants argue broadly that this case

presents a “substantial” federal issue because the federal government has an interest in the

authority, operation, and enforcement of federal emissions authorizations and standards and in the

enforcement of Pennsylvania’s SIP, as well as an interest in the authority to create and force

Corrective Actions Programs to ensure proper remediation of chemical manufacturing facilities.

(Docket No. 14 at 16-17). In cases under Grable jurisdiction, however, a suit generally “call[s]

into question the validity of a federal statute or the conduct of a federal actor.” MHA LLC, 629 F.

App’x at 414. “The prototypical case of Grable jurisdiction is one in which the federal government

itself seeks access to a federal forum, an action of the federal government must be adjudicated, or

where the validity of a federal statute is in question.” Id. at 413 n.6 (citing Gunn, 568 U.S. at 260-

61, and Grable, 545 U.S. at 312). In contrast, “if the issue is significant only to the parties, rather

than the ‘federal system,’ it is not a substantial federal issue.” Benjamin, 516 F. Supp. 3d at 470

(quoting MHA LLC, 629 F. App’x at 413 (additional internal citations omitted)). In this case, “the

federal government is not seeking access to a federal forum, no action of the federal government

is being adjudicated, and there is no question about the validity of a federal statute.” McLaughlin

v. Bayer Essure, Inc., Civ. Action No. 14-7315, 2018 WL 3535142, at *4 (E.D. Pa. July 23, 2018).

This case is thus not a prototypical case of Grable jurisdiction. Rather, because resolution of this

matter requires a fact-specific assessment of Defendants’ conduct, this case is “fact-bound and

situation-specific” and does not present a “pure issue of law.” Empire Healthchoice, 547 U.S. at

700-01. The Court therefore finds that Defendants have failed to meet their burden of establishing

that this case presents a “substantial” federal issue, the third Grable factor.

Finally, the fourth factor necessary to establish federal jurisdiction under Grable requires

Defendants “to show that [a] Plaintiff’s state law claims are ‘capable of resolution in federal court

without disrupting the federal-state balance approved by Congress.’” Benjamin, 516 F. Supp. 3d

at 471 (quoting Manning, 772 F.3d at 163). Defendants argue that the Court finding federal

question jurisdiction here will not disrupt the federal-state balance and present an “opening-the-

litigation-floodgates” problem because this case involves more than just typical negligence claims,

but also fraud claims and allegations of continuing conduct. (Docket No. 14 at 17-18). Defendants

also argue that the federal-state balance will not be upset here because the CAA permits citizen

suits to be brought in federal district courts. (See id. at 18).

However, as Plaintiffs point out, their Complaint does not allege claims under the CAA,

yet Defendants’ theory would require the Court to exercise federal jurisdiction over a case that is

filed in state court on the basis of state laws, simply because the alleged bad actor was subject to

federal laws. (Docket No. 21 at 9-10). Regardless of whether the CAA permits citizen suits to be

brought in federal court, Plaintiffs do not bring such claims. Rather, Plaintiffs allege a number of

Pennsylvania tort law claims, including negligence, fraudulent misrepresentation, fraudulent

concealment, private nuisance, and trespass. And regardless of whether the Complaint is unusual

because it raises fraud claims and would not “open the litigation floodgates” to similar types of

cases, the Complaint clearly asserts “run-of-the-mill state tort claims” that “are well within the

purview of the state court.” Benjamin, 516 F. Supp. 3d at 471 (quoting Yellen v. Teledyne Cont’l

Motors, Inc., 832 F. Supp. 2d 490, 499 (E.D. Pa. 2011)). Accordingly, this case “‘fits comfortably

within the state courts’ realm of expertise.’” See id. (quoting Yellen, 832 F. Supp. 2d at 499).

“[T]o find ‘otherwise would risk disrupting the balance between federal and state courts.’” Boyle,

2021 WL 6051439, at *6 (quoting Benjamin, 516 F. Supp. 3d at 471, and citing McGuire v.

Palmerton Hosp., Civ. Action No. 12-1718, 2012 WL 2362488 (E.D. Pa. June 20, 2012)). The

Court finds that Defendants have not shown that Plaintiffs’ state law claims are capable of

resolution in this Court without disrupting the federal-state balance approved by Congress, and

thus Defendants have not met their burden of establishing the fourth Grable factor.

III. CONCLUSION

Accordingly, for the reasons stated, The Court finds that it does not have subject matter

jurisdiction over this case because Defendants have not met their burden of showing that the four

Grable factors are met with regard to any of Plaintiffs’ state law claims. Plaintiffs’ Motion to

Remand will therefore be granted, and this case will be remanded to the Court of Common Pleas

of Butler County, Pennsylvania.

An appropriate Order follows.

Dated: March 31, 2025 s/ W. Scott Hardy

W. Scott Hardy

United States District Judge

cc/ecf: All counsel of record