Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LOWER SUSQUEHANNA : Civil No. 1:23-CV-00044

RIVERKEEPER ASSOCIATION, :

:

Plaintiff, :

:

v. :

:

REPUBLIC SERVICES OF :

PENNSYLVANIA LLC, :

:

Defendant. : Judge Jennifer P. Wilson

MEMORANDUM

Republic Services of Pennsylvania LLC (“Republic”) polluted Kreutz

Creek—a tributary of the Susquehanna River—and thereby violated the Clean

Water Act (“CWA”). The court convened a three-day bench trial to hear evidence

as to the appropriate sanction for Republic’s unlawful behavior. Upon

consideration of the evidence and the law, the appropriate sanction is a civil

penalty of $9,200,000. Findings of fact and conclusions of law follow.1

FINDINGS OF FACT

A. Modern Landfill and Kreutz Creek

Republic and its affiliates operate landfills throughout the country. (Trial Tr.

424:21–25.)2 The events giving rise to this lawsuit occurred at one of these

1 The court makes these findings and conclusions pursuant to Federal Rule of Civil Procedure

52(a).

2 The trial transcript is filed at docket numbers 108, 109, and 110.

facilities, Modern Landfill in York, Pennsylvania (“Modern”). Republic has

owned and operated Modern as a solid-waste disposal facility since 1999. (Trial

Tr. 341:6–16.) Like all landfills, Modern generates wastewater in the course of its

operation. (PFF ¶ 104.)3 The technical term for this wastewater is “leachate.”

(Trial Tr. 156:7–8.) Leachate is predominantly generated as rainwater infiltrating

from the landfill’s surfaces mixes with decomposing trash, PFF ¶ 241, though it

can also be the byproduct of other processes, such as landfill bacteria consuming

water, Trial Tr. 343:10–13. The problem with leachate is that it, as the name

suggests, leaches pollutants from the waste it passes through. (Trial Tr. 156:8–9.)

To deal with this issue, Modern operates an on-site wastewater treatment

facility. (PFF ¶ 103.) The byproducts of that treatment facility discharge into

Kreutz Creek—an 18-mile long tributary of the Susquehanna River in York

County, Pennsylvania—at a location known as Outfall 001. (PFF ¶ 107.)

Republic’s discharge from Outfall 001 is governed by a National Pollutant

Discharge Elimination System (“NPDES”) permit issued by the Pennsylvania

Department of Environmental Protection (“PADEP”) pursuant to its authority

under the CWA and the Pennsylvania Clean Streams Law. (See PFF ¶ 106.)

3 Citations to “PFF” refer to the parties’ proposed findings of facts. (Docs. 112, 114, 116.)

Pursuant to the court’s order dated February 27, 2026, Doc. 107, those filings contain

consecutively numbered paragraphs and the parties’ responses to each other’s proposals. The

court cites to “PFF” when a fact is undisputed. The absence of a citation to “PFF” does not

necessarily indicate that a fact is disputed.

Republic’s inability to comply with the effluent limits in its permit for two

constituents, boron and osmotic pressure, is what gives rise to this CWA citizen

suit.4

B. Republic’s 2017 Permit

NPDES permits have governed the facility at Modern since the 1980s. (Def.

Ex. 56.003.) 5 In November 2016, PADEP issued a draft NPDES permit to

Republic, which included two proposals. (PFF ¶ 1.) The first was to set effluent

limits for osmotic pressure. (Id.) Republic had been, pursuant to a previous

NPDES permit, monitoring and reporting osmotic pressure levels since 2015.6

(PFF ¶ 3.) Republic claimed to have no concerns about the proposed osmotic

pressure limits in the draft permit. Indeed, Republic told PADEP, “[t]he historic

data for Osmotic Pressure demonstrates that the effluent discharge has been well

below the limit proposed in the draft permit.” (Def. Ex. 8.002.) This statement

was nothing more than an attempt to convince PADEP not to impose more

4 Boron is a common, naturally occurring element. (PFF ¶ 113.) Osmotic pressure is not a

specific substance, but rather a measure of how much “force or energy [is] required to push a

solution through a semipermeable membrane.” (PFF ¶ 112.) High enough levels of both of

these constituents have the potential to cause harm to aquatic environments. (Trial Tr. 353:17–

21.)

5 Citations to Republic’s exhibits reference the Bates number on the cited page. The number

before the decimal is the exhibit number, and the number after the decimal is the page number.

The court uses this same convention when citing Plaintiff’s exhibits, even though they do not

have Bates numbers.

6 Despite this monitoring-and-reporting requirement, Republic did not know what the final

effluent limits would be when that requirement went into effect. (Trial Tr. 433:6–20.)

frequent osmotic pressure sampling requirements. (See id.) In reality, Republic

knew immediately that it would not be able to meet the proposed limits. (PFF ¶

14.)7

The second proposal was to impose a three-year reporting requirement for

Boron. (PFF ¶ 1.) Specific boron effluent limits would then take effect following

this three-year period. (Pl. Ex. 1.009.) Republic took no exception with either the

reporting requirement or the final limits. It stated to PADEP that it “agrees with

the Total Boron 3-year interim monitoring / reporting requirements and the final

limits . . . in the draft NPDES permit.” (Def. Ex. 8.001.) Like with the osmotic

pressure limits, Republic knew immediately that it was not going to be able to meet

the boron limits.8 (See PFF ¶ 14.)

On January 23, 2017, PADEP issued a final NPDES permit governing waste

discharge at Outfall 001 from February 1, 2017, through January 31, 2022 (“2017

Permit”). (PFF ¶ 5; Def. Ex. 9.) The 2017 Permit implemented the osmotic

pressure and boron proposals from the 2016 draft permit. (PFF ¶ 120.) The

7 Republic admitted the truth of paragraph 14 of the proposed findings of fact. That paragraph

states Republic “definitively became aware” its wastewater treatment facility was incapable of

meeting the effluent standards for osmotic pressure and boron on January 23, 2017, since the

facility was not designed to treat for those constituents. If this is the rationale for how it knew,

then surely Republic would have known in November 2016 that it was not going to meet the

proposed limits, which were the same as those in the final permit. (PFF ¶ 120.)

8 It knew immediately for the same reason it knew immediately with respect to the osmotic

pressure limits. See footnote 7, supra.

osmotic pressure limits—which took effect immediately—included three

concentration limits: (1) a monthly average limit (129 mOs/kg9); (2) a daily

maximum limit (183 mOs/kg); and (3) an instantaneous maximum limit (322

mOs/kg). (Def. Ex. 9.003)

The boron limits did not take effect until February 1, 2020. (Def. Ex.

9.005.) Prior to then, the 2017 Permit required Republic to monitor boron levels

from Outfall 001 and report them in monthly discharge monitoring reports. (PFF

¶ 9; Def. Ex. 9.003.) The boron limits, once they became effective, placed

restrictions on both the mass and concentration of boron discharges. The mass

limits included a monthly average maximum (17.2 pounds per day) and a daily

maximum (23.0 pounds per day). (Def. Ex. 9.005.) The boron concentration

limits included three specifications: (1) a monthly average limit (4.12 mg/L); (2) a

daily maximum limit (5.52 mg/L); and (3) an instantaneous maximum limit (10.3

mg/L). (Id.)

C. Republic’s Early Violations and Preliminary Steps Towards

Remediation

Republic first violated the osmotic pressure daily maximum limit in October

2017. (PFF ¶ 21.) Republic became aware of this exceedance during routine

9 The unit of measure “mOs” stands for milliosmole, i.e., one one-thousandth of an osmole.

(Doc. 62, ¶ 20.) An osmole is the “amount of a substance that contributes to the osmotic

pressure of a solution.” (Id.)

sampling and self-reported it to PADEP in a discharge monitoring report. (Def.

Ex. 10.002.) PADEP, in turn, issued a notice of violation to Republic in January

2018. (Pl. Ex. 5.) This did not prevent Republic from continuing to exceed the

osmotic pressure limits. Indeed, Republic exceeded both the monthly average and

daily maximum limits in January 2018 and the daily maximum limit on one

occasion each in October 2017, February 2018, and March 2018. (Pl. Ex. 7.009.)

For these five violations, Republic agreed to pay a civil penalty of $11,176 to

PADEP pursuant to a consent agreement dated June 7, 2018. (Pl. Ex. 7.005.)

The reason Republic continued to violate the osmotic pressure limits was

because Republic’s wastewater treatment facility simply did not have the

capability to treat osmotic pressure in wastewater. (Def. Ex. 15.002.) Republic

personnel discussed the implications of its facility’s shortcomings around the time

it entered the 2018 consent agreement. During a July 2018 meeting, a group of

Republic’s environmental managers and external consultants agreed that

“continued system optimization” of the wastewater treatment facility “cannot

achieve the [osmotic pressure] permit limits.” (Pl. Ex. 9.002.) Republic’s

concerns at that time equally applied to the facility’s ability to meet the soon-to-be-

effective boron limits. (Pl. Ex. 8A.001.) The officials at the July meeting all

concurred that “the only long-term remedy” to ensure Modern met the osmotic

pressure and boron limits was to install a reverse osmosis system. (Pl. Ex. 9.0002.)

More on that system later. The officials also agreed that Republic should budget

the cost to “design[,] purchase[,] and install” a reverse osmosis system for calendar

year 2019. (Pl. Ex. 9.002.) Republic recognized that this would be a costly

endeavor. As one Republic official noted, “we will likely have to invest several

million in the existing plant to meet permit conditions.” (Pl. Ex. 8A.001.)

Republic continued evaluating the possibility of installing a reverse osmosis

system into the fall of 2018. An October 2018 presentation to Republic’s upper

management discussed the necessity of such a system. (Trial Tr. 162:14–21; Def.

Ex. 12.) Specifically, upper management was told that “[c]apital has been

budgeted in 2019 for the installation of a Reverse Osmosis system to address new

limits for Boron and treat . . . Osmotic Pressure.” (Def. Ex. 12.003.) Management

was also told that Republic “commissioned” wastewater technical experts at

O’Brien & Gere to “complete an evaluation of the entire L[eachate] T[reatment]

P[lant].” (PFF ¶ 133.) Nothing in the record indicates what resulted from this

evaluation.

In November 2018, Republic engaged Civil & Environmental Consultants,

Inc. (“CEC”), PFF ¶ 138, a technical consulting firm that Republic heavily relies

upon for, inter alia, wastewater treatment design and permitting, Trial Tr. 377:3–6.

For this particular engagement, CEC sent Republic a proposal for reverse osmosis

design services, which was comprised of two “very preliminary” tasks. (PFF ¶

30.) The first task was a site inspection during which CEC evaluated available

space, Republic’s existing technologies, and the treatment facility’s key operating

metrics. (Trial Tr. 377:14–19; Pl. Ex 15.003.) The second task was creating a

preliminary design for a reverse osmosis system using data collected during the

first task. (Trial Tr. 377:19–22; Pl. Ex. 15.003.) The cost for these services totaled

$8,700. (PFF ¶ 30.)

D. Republic’s Evaluation of Remedial Measures and Actions Taken to

Implement Them

1. The Process

In addition to these preliminary actions, Republic was examining ways it

could come into compliance with its effluent limits. When Republic receives a

new NPDES permit—like the 2017 Permit—or needs to remedy non-compliance

with a permit, it follows a mandatory evaluation procedure. (PFF ¶ 134; Def. Ex.

9.032.) That procedure typically starts with the submission of Toxic Reduction

Evaluation (“TRE”) reports in two phases. (Def. Ex. 9.032.)

Republic had to submit its Phase I TRE report within 18 months of the 2017

Permit’s effective date. (Def. Ex. 9.032.) That report had to include: (1) an

“[i]nfluent and effluent quality review”; (2) a “[s]ource inventory and evaluation”;

(3) a “[s]ource reduction evaluation”; and (4) an analysis of the possible

“[i]mplementation of pollution prevention, sound housekeeping practices, and

other management practices.” (Def. Ex. 9.032–33.) In less technical terms, the

Phase I TRE report’s purpose was to “assess[] what potential influences, . . .

operational changes, [and] best management practices may be employed to . . .

start on the process of remediating a noncompliance situation.” (Trial Tr. 378:20–

24.) PADEP then had to approve the Phase I TRE report following its review.

(See Def. Ex. 9.032.) Once approved, PADEP had to notify Republic when to

proceed to Phase II. (See id.)

Republic needed to submit its Phase II TRE report within 180 days of

receiving PADEP’s notice to proceed. (Id.) The report had to include the same

information as the Phase I report along with two additional elements. (Def. Ex.

9.034.) It had to analyze whether any low-cost, non-structural alternatives—such

as “recycle[ing], reus[ing], or process/chemical substitution[s]”— could reduce the

pollutants being discharged. (Id.) It also had to select “a specific pollution control

option that will achieve the applicable [water quality-based effluent limitations

(“WQBELs”)] and specify a schedule for the implementation of this option.” (Id.)

To facilitate a reasoned selection, Republic’s Phase II TRE report had to “assess[] .

. . all available pollution control options . . . and their ability to comply with the

final WQBELs.” (Id.) The Phase II TRE report may also include a request for an

extension of time to achieve compliance with WQBELs pursuant to 25 Pa. Code

§ 95.4. (Id.) The 2017 Permit notes that such a request is appropriate if “the final

WQBEL [is] not . . . technologically achievable using any combination of control

options.” (Id.)

Following the TRE process, a permitee should have identified how it will

achieve compliance with an NPDES permit. (Trial Tr. 379:13–17.) The next step

towards compliance ordinarily is obtaining a water quality management (“WQM”)

permit. (Id.) Nothing prevents a permitee, however, from seeking and obtaining a

WQM permit before completing its TRE reports. (PFF ¶ 151.) Whenever it is

submitted, the permit application explains what specific technologies the permitee

intends to implement, including a description of its capabilities and ancillary

components. (Trial Tr. 379:17–20.) Construction of the design can proceed only

after PADEP issues the WQM permit. (PFF ¶ 40.)

2. Pre-Phase I Correspondence between PADEP and Republic

On January 18, 2019, PADEP sent another notice of violation to Republic.

(PFF ¶ 31.) The notice stated that Republic had six violations each of the monthly

average and daily maximum limits for osmotic pressure between June 2018 and

November 2018. (Pl. Ex. 17.001.) The notice required Republic within 15 days to

submit a report explaining the causes of the violations, a timeline of future

remediation actions, and measures taken to prevent future violations. (Id.)

Republic timely filed a responsive letter. (Pl. Ex. 22.) Therein, Republic reported

that its wastewater treatment facility “was not designed to treat [osmotic

pressure].” (Pl. Ex. 22.002.) Republic also shared its belief that “[r]everse

[o]smosis . . . appears to be the best treatment option for meeting the [osmotic

pressure] permit levels.” (Id.) The letter then made a request. Republic expressed

a desire to discuss the possibility of entering a consent order that would “set forth

milestones and timelines for the plant upgrade project.” (Id.) To Republic, who

knew it would continue to violate the osmotic pressure limits, this option was

preferrable to continuing to receive notices of violation. (Id.) Despite these

discussions, Republic had not definitively decided to install a reverse osmosis

system at this time. (PFF ¶ 33.)

3. Republic’s Phase I TRE Report

CEC prepared Republic’s Phase I TRE report, which Republic submitted to

PADEP on February 18, 2019, about six-and-one-half months late. (PFF ¶ 34.)

The report solely focuses on Republic’s compliance with respect to boron limits,

see Def. Ex. 16.004, which it seems was all the 2017 Permit required. (See Def.

Ex. 9.0031–32.)

The report first evaluated Modern’s wastewater treatment facility’s historical

influent and effluent data from between January 1, 2017, and December 4, 2018.

(Def. Ex. 16.009.) The report considered influent data concerning leachate and

groundwater, since those two sources contributed nearly everything flowing into

the wastewater treatment facility. (Id.) Specifically, leachate and groundwater

made up about 35–40% and 60–65%, respectively, of the influent stream. (Id.)

The total amount of those two liquids entering the wastewater treatment facility

daily typically averaged between 40,000 and 250,000 gallons per day. (Id.)

Output from the facility mostly totaled between 100,000 and 250,000 gallons per

day. (Id.)

The report also evaluated historical discharge levels for boron and total

dissolved solids (“TDS”) from Modern’s wastewater treatment facility. (Def. Ex.

16.011–14.) The boron data included both concentration data between January

2012 and October 2018, as well as total-discharge data between February 1, 2017,

and October 1, 2018. (Def. Ex. 16.012.)

Republic’s boron concentration levels between 2012 and 2017 generally

stayed below the 2017 Permit’s limit of 5.52 mg/L. (Id.) Levels exceeded the 5.52

mg/L limit a handful of times in that five-year period, mostly in 2013 and 2014.

(Id.) Exceedances of the 5.52 mg/L limit became prevalent and significant,

however, beginning in 2017. (Id.) CEC could not identify any explanation for this

sudden increase in 2017. (Def. Ex. 16.011.)

Total boron discharge at Modern’s facility generally remained below the

2017 Permit’s limit of 23 pounds per day between February 2017 and June 2018.

(Def. Ex. 16.012.) Although, exceedances of that limit occurred with some

regularity between June 1 and August 1, 2018. (Id.)

The TDS data in the Phase I report was more limited. CEC plotted annual

TDS readings that Republic conducted between 2010 to 2018 against boron

concentration from the same period. (Def. Ex. 16.014.) Republic internally

monitored TDS levels as a metric for effective plant operation. (Trial Tr. 435:1–

5.) CEC included TDS data in the report to form an opinion as to the form in

which Modern was discharging boron. (See Def. Ex. 16.013.) The positive

correlation between boron and TDS made CEC think that Modern was mostly

discharging boron in a dissolved form, rather a particulate form. (Id.)

More important to this case, however, is what the TDS data says about

Republic’s history of osmotic pressure discharge. A direct correlation exists

between TDS and osmotic pressure, which is equal to a 60:1 ratio. (Trial Tr.

412:3–12; Def. Ex. 29.019.) So, for instance, the 2017 Permit’s osmotic pressure

monthly average limit—which was set at 129 mOs/kg—equates to a TDS level of

7,740 mg/L. (PFF ¶ 17.) When TDS levels exceed 7,740 mg/L, osmotic pressure

levels exceed 129 mOs/kg. (See Trial Tr. 413:18–414:4.) The historical data in

the Phase I TRE report reveal that Republic’s TDS levels were consistently above

7,740 mg/L. (Def. Ex. 16.014.) Between 2010 and 2018, in fact, the only samples

that yielded TDS levels below 7,740 mg/L were those in 2010 and 2012. (Id.) In

2014, 2016, and 2018, the levels were higher than 14,000 mg/L and as high as

16,000 mg/L. (Id.) It is implausible that Republic would have been

contemporaneously unaware of either these readings—since it used them to ensure

effective plant operation, Trial Tr. 435:1–5—or their significance vis-à-vis osmotic

pressure—since the 60:1 ratio is generally known by those in the landfill industry,

Trial Tr. 434:3–8.

The Phase I TRE report also considered the potential sources of boron at

Modern. (Def. Ex. 16.015.) Many types of waste can contain boron including,

e.g., fiberglass insulation, treated wood or paper, and detergents. (Id.) The

problem CEC had with identifying a potential source from a type of waste is that

Modern accepted all of the common boron-containing waste products and did not

categorize incoming waste by potential constituents contained therein. (Id.) Thus,

boron-containing waste could have been in any part of the landfill. (See id.) As

CEC summarized the issue, it would have been “not possible to quantify or locate

specific boron[-]containing waste within the landfill cells without considerable cost

and time expenditure.” (Id.) CEC ultimately concluded on this issue that “a

majority of the boron is in the leachate.” (Def. Ex. 16.018.)

CEC’s analysis led it to conclude that “[m]inimal boron removal within the

[wastewater treatment plant] is occurring and additional treatment processes will

need to be assessed to be able to meet proposed permitted discharge limits.” (Id.)

Naturally, then, the Phase I TRE report identified the two best alternative treatment

processes that could bring Modern into compliance with the 2017 Permit’s boron

limits. (Def. Ex. 16.017.) The first was ion exchange, which involves removing

boron using a special “resin.” (Id.) The second was reverse osmosis. (Id.) The

report noted that further assessment of these process would be necessary. (Def.

Ex. 16.018.)

4. Post-Phase I Discussions Between Republic and PADEP

Discussions between PADEP and Republic continued. In a letter dated June

20, 2019, Republic wrote to PADEP that its wastewater treatment facility was not

originally designed to treat for osmotic pressure or boron. (Def. Ex. 19.001.) It

then explained that “Modern [was] actively pursuing [p]lant upgrades” to address

the issue, including a reverse osmosis system. (Id.) Republic estimated that with

PADEP’s approval, design of this work, procurement, bidding, construction, start-

up, and testing could be completed in 2020. (Def. Ex. 19.002.) The letter closed

with a request for a meeting with PADEP to discuss a mutually acceptable

compliance timeline. (Id.)

Republic sent a similar but more detailed letter on September 18, 2019.

(Def. Ex. 21.) Republic again noted that its facility was not capable of treating for

osmotic pressure and boron. (Def. Ex. 21.001.) For this reason, Republic’s letter

requested an extension of the deadline to comply with the 2017 Permit’s boron

limits. (Def. Ex. 21.001) The letter reassured PADEP that Republic was “actively

pursuing [p]lant upgrades to address boron [and] [osmotic pressure],” reiterating

reverse osmosis as a possible solution. (Def. Ex. 21.002.) Republic’s estimated

timeline, however, was different this time. (Id.) It now estimated facility upgrades

could be completed and running by August 2021. (Def. Ex. 21.002.) In the

interim, Republic insisted that it was taking steps to reduce exceedances, which

were mostly focused on installing flow meters and controls. (Id.) Nothing in the

record suggests that PADEP granted Republic’s requested extension. To the

contrary, Republic renewed its extension request in March 2020, Def. Ex. 23.001,

which PADEP rejected, PFF ¶ 36.

Two other discussions occurred between PADEP and Republic around the

fall of 2019. At an October 31 meeting, Republic described for PADEP its

planned corrective actions and improvements to address osmotic pressure

violations. (Def. Ex. 25.004.) Two weeks later, Republic sent PADEP a proposed

schedule for the installation of a reverse osmosis system at its facility. (Id.) The

record contains no other details of these conversations.

5. Republic’s Initial Request to Amend its WQM Permit

PADEP approved Republic’s Phase I TRE report and notified Republic to

proceed to Phase II on July 3, 2019. (Def. Ex. 29.006.) Rather than move directly

to preparing and submitting its Phase II TRE report, Republic submitted on

February 18, 2020, an application to amend the WQM permit that governed its

wastewater treatment facility. (PFF ¶ 150.) Among other systems, Republic

wanted to install a reverse osmosis treatment system. (Def. Ex. 37.002.) Republic

took this step before completing its Phase II TRE report because it was confident

that reverse osmosis was the process it was going to use to achieve compliance.10

(Trial Tr. 395:21–396:6.) Republic’s submission of its WQM permit application

marks the point when Republic definitively decided to build a reverse osmosis

system. (PFF ¶ 33.)

On May 19, 2020, Republic withdrew its application on PADEP’s

recommendation in order to revise a “disinfection system design addressing fecal

coliform.” (Def. Ex. 24.001.) Republic did not expect that this withdrawal would

delay PADEP’s review of its application. (Id.)

6. 2020 Consent Order and Agreement

As it investigated remedial actions, Republic was continuing to violate the

2017 Permit’s effluent limits for osmotic pressure as well as those for boron once

they became effective. (Def. Ex. 25.016–18.) Between April 2018 and June 2020,

Republic violated the osmotic pressure monthly average limit 23 times and the

daily maximum limit 20 times. (Id.) As to boron, Republic violated the monthly

average limits collectively 8 times and the daily maximum limits collectively 11

times between February and June 2020. (Id.) The inevitability of continuing

10 Republic’s area environmental manager Jacob Schmidt testified that Republic acted quickly to

amend the WQM permit in order to be a “good neighbor.” (Trial Tr. 380:9–12.) The court does

not credit this testimony. Schmidt did not start working for Republic until August 2020, six

months after Republic sought this amendment. (Trial Tr. 361:2–5.)

violations and a desire for compliance timelines caused Republic to seek out and

enter into a consent order and agreement with PADEP dated August 25, 2020

(“COA”). (Def. Ex. 25; Trial Tr. 223:10–12.)

Neither the COA nor any consent agreement with PADEP was a prerequisite

to Republic installing a reverse osmosis system or any other remedial measures.

(PFF ¶ 40.) Nevertheless, the COA set forth a compliance schedule that Republic

agreed to follow. (PFF ¶ 37.) Republic first had to submit a WQM permit

application within 30 days of the COA’s effective date. (Def. Ex. 25.007.) Once

PADEP approved the new WQM permit, Republic had 180 days to award contracts

for construction of the wastewater-treatment-facility upgrades. (Id.) Construction

had to begin 60 days after Republic awarded the construction contracts and

completed 330 days thereafter. (Id.)

The COA also set forth stipulated civil penalties for past violations that

occurred between April 2018 and June 2020, and for violations following the

COA’s effective date. (Def. Ex. 25.008–09.) For the past violations, Republic

agreed to pay $31,300. (Def. Ex. 25.008.) For subsequent violations, Republic

agreed to pay penalties in amounts based on, in relevant part, the degree to which a

violation exceeded the permit limits. (Def. Ex. 25.009, 19.) These stipulated

penalties were relatively modest, ranging from $125 to $250 for violations of daily

limits and $250 to $400 for violations of monthly average limits. (Def. Ex.

25.019.) Republic continued violating the boron and osmotic pressure effluent

limits until the upgrades to its wastewater treatment facility were complete in April

2023. (See Doc. 24.) In the end, Republic paid a total of $77,800 in civil penalties

under the COA. (PFF ¶ 160.)

7. Republic Resubmits WQM Permit Application and Completes

Phase II TRE Report

Pursuant to the COA, Republic timely refiled its WQM permit application in

late September 2020. (Def. Ex. 28.) This application, like the previous one,

sought approval for the installation of a reverse osmosis system. (Def. Ex.

28.005.)

Republic submitted its Phase II TRE Report about one month later, on

October 29, 2020. (Def. Ex. 30.001.) The due date for this report was December

31, 2019. (PFF ¶ 41.) The relevant conclusions of this report—which CEC once

more prepared—were similar to those in Republic’s Phase I TRE report.

(Compare Def. Ex. 16.018, with Def. Ex. 29.022.) The report determined that best

management practices and non-structural alternatives would be insufficient to

make Modern’s boron discharges compliant. (Def. Ex. 29.022.) It also concluded

that reverse osmosis would be the “most cost effective and efficient” treatment

option. (Id.)

E. Construction of Republic’s Reverse Osmosis System

It took some time for Republic’s WQM permit to get approved. The record

is somewhat ambiguous as to why this is the case. About seven months after

resubmitting its WQM permit application, Republic submitted an amended

application on April 30, 2021. (Def. Ex. 32.) Nothing in the record explains why

Republic submitted this amendment. Some back and forth then ensued between

Republic and PADEP. For example, PADEP sent a technical deficiency letter

regarding the application to Republic on July 9, 2021, and Republic responded ten

days later. (Def. Ex. 33.001.) Other discussions involving the application’s

technical deficiencies occurred, but it is unclear how many. (See Def. Ex. 33.004

(referencing a previous deficiency letter).) Ultimately, PADEP approved

Republic’s application on September 27, 2021. (Dec. Ex. 34.001.)

1. Republic’s Decision to Approve Expenditures to Upgrade

Wastewater Treatment Facility

Republic took no steps towards constructing the reverse osmosis system

from the time PADEP approved its WQM permit to the beginning of March 2022.

Around March 9, 2022, Republic personnel prepared a presentation for Republic

leadership that made a business case for why it should make upgrades to its

wastewater treatment facility. (PFF ¶ 178.) Specifically, it analyzed the financial

sense of making the upgrades. (See Trial Tr. 401:6–9.) On the one hand, the

upgrades would cost about $23 million dollars. (PFF ¶ 179.) Only $3.54 million

of this total cost was attributable to installing the reverse osmosis system and

remediating violations of the boron and osmotic pressure limits. (Pl. Ex. 88.005.)

The other $20 million was attributable to other upgrades at the facility. (See Trial

Tr. 243:19–244:6.) On the other hand, a reverse osmosis system would save

Republic the cost of trucking and disposing (“T&D”) leachate offsite to other

treatment facilities. (Def. Ex. 40.006.) Republic would have spent about 12 cents

per gallon to treat leachate using the upgraded treatment facility; whereas it would

have spent 23 cents per gallon to “T&D all liquids.” (Id.) This difference would

yield Republic about $4.4 million in annual savings.11 (Id.) Republic approved the

project to upgrade its wastewater treatment facility on March 14, 2022, a few days

after this presentation. (Pl. Ex. 58.001.)

11 Notwithstanding its own T&D analysis, Republic’s position at trial was that trucking—rather

than dumping—all of its untreated leachate would have been impossible. (Trial Tr. 203:23–24.)

This is because, according to Modern’s then-general manager, Tim O’Donnell (“O’Donnell”),

“there wasn’t sufficient capacity in the market to take all that leachate.” (Id.) This belief seems

to be a product more of assumption rather than thoughtful consideration. O’Donnell

acknowledged that Republic neither (1) possessed documents that “address[ed] or discuss[ed] or

concern[ed] the exhaustion of the ability to truck leachate” due to market capacity, Trial Tr.

204:21–205:14; nor (2) analyzed or did “any kind of thinking” about how much it would cost to

truck leachate offsite rather than violate the 2017 Permit, Trial Tr. 247:5–10. Documentary

evidence also disputes O’Donnell’s testimony. As noted above, Republic’s business-case

presentation clearly contemplates the annual costs of T&D for “all liquids” despite “[d]isposal

locations” being “limited.” (Def. Ex. 40.006.) Nothing in the presentation indicated that T&D

of “all liquids” was impossible. (Trial Tr. 260:15–19.) Similarly, Republic’s project-approval

form for the wastewater treatment facility’s upgrade listed two options Republic had if it did not

complete the upgrade: Republic could either violate the COA or it could remove “all waste

liquids . . . via T&D.” (Pl. Ex. 58.001 (emphasis added).) These documents strongly undermine

the notion that market capacity posed a complete barrier to using T&D to mitigate the pollution

of Kreutz Creek.

2. Contracting and Completing the Upgrades

Republic awarded the project contract to a contractor on March 25, 2022.

(PFF ¶ 180.) Construction began on May 23, 2022. (PFF ¶ 181.) During

construction, Republic’s contractor ran into some supply-chain issues caused by

the COVID-19 pandemic.12 (PFF ¶ 182.) As O’Donnell described them, the issues

primarily involved longer wait times for equipment that the contractor was

ordering. (Trial Tr. 255:4–13.) These supply-chain issues did not, however, cause

any meaningful delays. (See Trial Tr. 255:22–265:2.) The system was still

installed and operational by the COA-imposed deadline, April 25, 2023. (PFF

¶ 184; Trial Tr. 255:14–15.) From this point forward, Republic ceased violating

the boron and osmotic pressure effluent limits in the 2017 Permit. (PFF ¶ 184.)

3. Republic’s Reverse Osmosis System and its Byproducts

Reverse osmosis is a “well accepted and known” wastewater treatment

technology that existed long before the period relevant to this case. (Trial Tr.

417:20–22, 419:18–20.) Republic’s reverse osmosis system takes up an entire

building at Modern and includes many components parts, including storage tanks,

pH balancing systems, pumps, and valves. (Trial Tr. 370:1–6.) It can treat

approximately 125 gallons per minute, i.e., 175,000 gallons per day. (Trial Tr.

12 O’Donnell initially testified that COVID-19 “slowed down the process” of being able to

address exceedances. (Trial Tr. 165:14–167:7). When pressed to explain what he meant, he

clarified that he was talking about construction-related delays, not pre-construction delays.

(Trial Tr. 254:9–12.)

370:13–14.) At a most basic level, the system cleans water by forcing it through

very fine mesh filters at high pressures. (PFF ¶ 132.) The process has two

byproducts: clean water and the constituents that do not make it through the filters,

known commonly as “RO reject.” (Trial Tr. 370:16–23.) RO reject is a

wastewater that must be disposed of appropriately. (Trial Tr. 370:25–371:1.)

For the times relevant to this lawsuit, Republic utilized two RO-reject

disposal options. For the first 464 days the reverse osmosis system was

operational, Republic trucked the RO reject to publicly owned treatment works

facilities. (PFF ¶ 46.) Republic then transitioned to solidification, which is the

process of inducing a chemical reaction that transforms the RO reject into a solid

mass that can be placed in the landfill. (PFF ¶ 175.)

F. PADEP’s Termination of the COA

In a letter dated March 19, 2024, PADEP notified Republic that it had (1)

completed all corrective-action milestones listed in the COA; (2) demonstrated six

consecutive months of compliance with its NPDES permit’s effluent limits; and (3)

paid all stipulated penalties due under the COA. (Def. Ex. 74.002.) For these

reasons, PADEP terminated Republic’s obligations under the COA as of the

letter’s date. (Id.)

PROCEDURAL HISTORY

The Lower Susquehanna Riverkeeper Association (“LSRA”) sent a notice of

intent to Republic, PADEP, and the United States Environmental Protection

Agency (“EPA”), informing these entities of LSRA’s intent to file a citizen suit

against Republic for its violations of the 2017 Permit. (Doc. 39-9, pp. 4–10.)

After satisfying this jurisdictional prerequisite, LSRA filed the instant lawsuit.13

(Doc. 1.)

The complaint initially sought to hold Republic liable for its discharges of

boron, osmotic pressure, and per- and polyfluoroalkyl substances (“PFAS”). (Doc.

1, pp. 6–7.)14 LSRA agreed, however, to dismiss its claims related to PFAS.

(Docs. 45 & 46.) The complaint sought the following relief: (1) a declaration that

Republic violated the CWA and the effluent limits of the 2017 Permit; (2) an order

directing Republic to comply with the 2017 Permit; (3) an order directing

“Republic to pay appropriate civil penalties for each violation of [the 2017

Permit]”; (5) attorneys’ fees and other reasonable expenses; and (6) other relief the

court deems just and proper. (Doc. 1, p. 7.)

The parties stipulated that Republic was liable for 419 permit exceedances

that occurred between July 2019 and April 2023. (Doc. 24.) Notwithstanding the

13 Before filing a citizen suit, a plaintiff must provide notice in the manner prescribed by 33

U.S.C. § 1365(b)(1) and 40 C.F.R. § 135.3(a).

14 For ease of reference, the court uses the page numbers from the CM/ECF header.

stipulation, both parties moved for summary judgment. (Docs. 38 & 56.) LSRA

sought a ruling that Republic was liable for the aforementioned 419 permit

exceedances as well as 30 exceedances that occurred between October 2017 and

June 2019. (Doc. 38.) The court granted LSRA’s motion with respect to the latter

419 exceedances but denied the motion with respect to the earlier 30 exceedances.

(Doc. 66.) Republic sought summary judgment on the grounds that LSRA did not

have standing, that the claims were statutorily precluded, and that a civil penalty

was unwarranted as a matter of law. (Doc. 56.) The court rejected each argument

and denied Republic’s motion. (Doc. 66.)

The court then scheduled this matter for a bench trial. Prior to trial,

Republic filed motions in limine. (Docs. 76, 87, 89.) One of those motions, Doc.

89, sought to preclude LSRA from seeking “injunctive relief requiring [Republic]

to pay monies into a remedial fund to mitigate the harm caused to Kreutz Creek by

it past violations of its water-quality based permit limits.” (Doc. 90-2, p. 4.) The

court denied that motion, Doc. 100, holding that LSRA was entitled to seek this

relief, Doc. 99, pp. 4–10.

The bench trial occurred on February 23, 24, and 25, 2026. The court

ordered the parties to file post-trial proposed findings of fact and conclusions of

law. (Doc. 107.) Those documents having been filed and reviewed, the court is

prepared to render judgment in this case.

JURISDICTION

This court has subject matter jurisdiction over this CWA citizen’s suit

pursuant to 28 U.S.C. § 1331 and 33 U.S.C. § 1365. Venue is proper in this

district as the place where Republic’s discharge source is located. 33 U.S.C.

§ 1365(c)(1).

LEGAL STANDARD

Congress passed the CWA “to restore and maintain the chemical, physical,

and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). Generally,

the CWA prohibits the discharge of pollutants, id. § 1311(a), although not for those

who do so in accordance with an NPDES permit, id. § 1342(a)(1). Those who

violate a “condition or limitation” of an NPDES permit “shall be subject to a civil

penalty not to exceed $[68,445] per day for each violation.”15 Id. § 1319(d).

As § 1319(d)’s mandatory language suggests, “court[s] [are] obliged to

assess penalties” for proven violations of the CWA. Nat. Res. Def. Council, Inc. v.

Texaco Refining & Mktg., Inc., 2 F.3d 493, 503 (3d Cir. 1993). In doing so, courts

must consider six statutory factors: (1) “the seriousness of the violation or

violations”; (2) “the economic benefit (if any) resulting from the violation”; (3)

15 The CWA provides a maximum penalty of “25,000 per day for each violation.” 33 U.S.C.

§ 1319(d). But, “[t]he Federal Civil Penalties Inflation Adjustment Act of 1990 . . . as amended

by the Debt Collection Improvement Act of 1996 . . . authorizes the EPA to adjust that maximum

penalty for inflation.” Sackett v. EPA, 566 U.S. 120, 123 n.1 (2012) (citations omitted). Using

that authority, EPA has set the maximum applicable in this case at $68,445. 40 C.F.R. § 19.4.

“any history of such violations”; (4) “any good-faith efforts to comply with the

applicable requirements”; (5) “the economic impact of the penalty on the violator”;

and (6) “such other matters as justice may require.” Pub. Interest Research Grp. of

N.J., Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 79 (3d Cir. 1990)

(quoting 33 U.S.C. § 1319(d)).

The Third Circuit has endorsed two approaches to calculating a civil penalty

using the § 1319(d) factors. United States v. Mun. Auth. of Union Twp., 150 F.3d

259, 265 (3d Cir. 1998). The first is the “top down” approach whereby a court

calculates the statutory maximum penalty and reduces it based on its evaluation of

the six factors. Id. The second is the “bottom up” approach whereby a court

calculates the violator’s economic benefit of noncompliance and adjusts the

penalty “upward or downward” based on the reaming five factors. Id. Ultimately,

the court has “wide discretion” to calculate a CWA civil penalty. Id. at 264;

accord County of Maui v. Hawaii Wildlife Fund, 590 U.S. 165, 186 (2020) (noting

that § 1319(d) “vests courts with broad discretion to set a penalty”); Tull v. United

States, 481 U.S. 412, 427 (1987) (acknowledging that setting a CWA civil penalty

involves “highly discretionary calculations”).

CONCLUSIONS OF LAW

As the court previewed for the parties, it will employ the “bottom up”

approach in this matter. Therefore, the court first calculates the economic benefit

that Republic obtained from its noncompliance with the 2017 Permit and then

considers whether the other § 1319(d) factors warrant an increased or decreased

penalty.

A. Republic’s Economic Benefit

The parties each proffered one expert witness at trial to opine as to what

economic benefit Republic derived from its unlawful conduct. The court qualified

both as experts in calculating the economic benefit of environmental

noncompliance. (PFF ¶ 55; Trial Tr. 274:20–25.)

The experts generally agreed about how the figure should be calculated.

Republic’s economic benefit is ultimately the difference between the costs it

actually incurred to achieve and maintain compliance beginning in April 2023 and

those it would have incurred to achieve and maintain compliance beginning in July

2019, adjusted for present value and tax deductibility.16 (PFF ¶ 58.) The relevant

compliance costs fall into three categories: capital investments, one-time non-

depreciable expenditures, and annually recurring costs. (PFF ¶ 62.)

16 Republic insists that it is “irrational” to think “that Republic enjoyed an economic benefit

commencing in July 2019,” since it would mean that Republic should have started upgrading its

wastewater treatment capabilities “prior to the new limits coming into effect and any

exceedances occurring.” (Doc. 113, p. 13.) Of course, though, Republic for years prior to July

2019 exceeded limits that had been in-effect since early 2017. Once Republic did so rather that

expend the resources necessary to be law-abiding, it realized an economic benefit. If anything,

Republic’s economic benefit is not fully captured by this lawsuit.

The first two categories make up a small percentage of Republic’s realized

economic benefit. Republic’s capital costs are the investments it made in

constructing the reverse osmosis system and the solidification system for the RO

reject. (PFF ¶ 63.) These costs totaled about $3,537,533 for construction of the

reserve osmosis system and $815,565 for the solidification system. (PFF ¶¶ 63–

64.) As to the second category, Republic only incurred one non-depreciable

expenditure totaling $36,257, which was related to the solidification system. (PFF

¶ 66.) Both experts treated these costs as delayed, Trial Tr. 293:21–294:9, which

is to say they are costs Republic was going to incur at some point, PFF ¶ 199. The

total value of the economic benefit derived from delaying these costs as of the time

of this opinion is about $162,794.17 The experts agree about this value. (See PFF

¶ 86; Trial Tr. 302:23–25.)

They significantly disagree, however, as to what economic benefit Republic

derived by not incurring the annually recurring costs beginning in July 2019.

LSRA’s expert opined that as of July 2024, Republic’s total economic benefit for

avoiding annually recurring costs was $3,938,534. (Pl. Ex. 107.001.) Republic’s

17 Plaintiff’s expert calculated this number to be $141,338 as of July 19, 2024 (i.e., the date of his

expert report). (Pl. Ex. 107.001.) Column (g) of Plaintiff’s Exhibit 107 provides the amounts by

which the value of economic benefit increases each month after July 2024 for the three

categories of cost. (Id.) Since Republic never disputed the accuracy of column (g), the court

relied on the appropriate values therein to arrive at the present value of $162,794.

expert believes the number to be closer to approximately $500,000.18 The experts

came to these conclusions looking at the same three categories of annual costs.

(See Trial Tr. 66:8–70:15, 294:3–20.) The first category was the cost to truck RO

reject out of Modern for the first 464 days that the reverse osmosis system was

operational. (PFF ¶¶ 69, 70.) The prorated annual cost of this trucking in 2023

was about $921,203. (Trial Tr. 68:2–5.) The second category was the cost to

operate and maintain the reverse osmosis system. (Trial Tr. 68:22–69:1.) This

cost as of August 2023 was about $63,047 per month, i.e., $756,564 per year.

(PFF ¶ 73.) The third category was the cost to operate the solidification system.

(Trial Tr. 69:19–70:3.) That cost was $578,000 per year as of June 2024. (Trial

Tr. 70:8–13.)

The difference between the experts’ conclusions stems from a disagreement

about whether the annual operating costs should be considered (1) delayed, i.e.,

Republic will have incurred them at some point; or (2) avoided, i.e., Republic

never will incur them.19 (PFF ¶¶ 199, 200.)

18 Republic’s expert did not explicitly opine what Republic’s economic benefit was vis-à-vis

annually recurring costs. The court infers what his opinion must be by approximating the

difference between what he thought the total economic benefit was as of May 2024, Trial Tr.

295:23–296:3, and what he agreed was the economic benefit of delaying the other two categories

of costs as of July 2024, Pl. Ex. 107.001; Trial Tr. 302:23–25.

19 The experts agreed that the RO-reject trucking costs should be considered delayed. (Trial Tr.

294:3–9.) As LSRA’s expert rationalized it, Republic would have incurred those costs for the

same fixed, discrete period of time regardless of when the reverse osmosis system became

operational. (See PFF ¶ 81.)

LSRA’s expert treated them as avoided. (PFF ¶ 81.) His rationale was that

since Republic will incur those costs for an indefinite duration, a perpetual gap will

exist between how long Republic actually paid the costs and how long it should

have paid the costs. (See Trial Tr. 456:16–457:7.) Since Republic will never

“catch[] up,” it will avoid the costs it should have incurred. (Id.) LSRA’s expert

would have considered the operating costs delayed if Republic had stored the

untreated leachate on site so that it could be treated once the new systems began

operating. (See Trial Tr. 80:12–25.) In that scenario, Republic would have

incurred the costs to treat the same amount of leachate regardless of when it built

the reverse osmosis and solidification systems. (Id.)

Republic’s expert treated the operating costs as delayed on the basis that

Republic is now actually incurring the costs and will continue to do so. (Trial Tr.

294:10–20.) In his view, what PADEP required Republic to do was a key

consideration. (Trial Tr. 328:20–24.) He would have treated the costs as avoided

if Republic ignored a regulatory obligation to store the leachate and treat it with the

new systems once they became operational. (Trial Tr. 327:23–328:10.) Since

PADEP never required such measures here, Republic’s expert did not think

Republic avoided the costs of having to treat the leachate it discharged. (See Trial

Tr. 329:8–17.)

The opinion of LSRA’s expert is more persuasive; the annual operating costs

of the reverse osmosis and solidification systems are avoided costs. This

conclusion aligns with EPA’s guidance to ordinarily treat such costs as avoided.20

(Pl. Ex. 120.015.) In any event, it makes especially good sense here to treat the

costs as avoided. Between July 2019 and April 2023, Republic did not incur

recurring costs to treat 156 million gallons of leachate at Modern. (PFF ¶ 20.)

That leachate traveled down Kreutz Creek to the Susquehanna River and

eventually into the Chesapeake Bay and Atlantic Ocean. Republic will never incur

the costs of treating those 156 million gallons. As LSRA’s expert noted, Republic

will never catch up on those costs. (Trial Tr. 457:5–7.)

The court recognizes, as EPA does, that annually recurring costs can

sometimes be delayed rather than avoided.21 (Pl. Ex. 120.015.) Yet, Republic’s

expert simply offers no credible explanation for why a departure from the ordinary

treatment of these costs is warranted. For one, his primary rationale—that the

costs are delayed because Republic now incurs them—flips the ordinary

presumption on its head. Under this logic, the only way any annually recurring

cost would be considered avoided is if the violator never came into compliance.

20 This guidance is located in the EPA’s BEN Help System. (Pl. Ex. 120.) BEN is a computer

model developed by EPA used “to calculate the economic benefit a violator derives from

delaying and/or avoiding compliance with environmental statutes.” (Pl. Ex. 120.003.)

21 The BEN Help System offers no examples of when annually recurring costs should be treated

as delayed versus avoided or vice versa. (See PFF ¶ 92; Pl. Ex. 120.)

Moreover, the court does not credit the opinion that the annual operating costs

would have been avoided only if Republic had disobeyed a PADEP directive to

store and treat the 156 million gallons of leachate using the new systems. (Trial

Tr. 327:23–328:10.) Republic was under a PADEP directive not to exceed its

effluent limits. It could have satisfied this directive by installing a reverse osmosis

system. Instead of doing so, it ignored its regulatory obligations and discharged

noncompliant leachate into Kreutz Creek. There is no principled distinction

between saying that costs are avoided because Republic ignored a regulatory

directive to store and treat the leachate versus saying that costs are avoided because

Republic ignored a directive to treat the leachate in the first instance. If Republic’s

expert is right that the the former is true, then the latter would also be true.

Given these conclusions, Republic’s economic benefit from avoiding

annually recurring costs of compliance equals $4,536,326.22 Adding this amount

to the economic benefit of delaying capital costs and one-time non-depreciable

expenditures provides a subtotal of $4,699,120. Both parties agree that Republic’s

economic benefit should be decreased by the cost of Republic’s stipulated

penalties. (See PFF ¶ 88; Trial Tr. 41:24–42:3.) This makes sense; Republic

would not have paid those penalties had it been in compliance with the 2017

22 Plaintiff’s expert calculated this number to be $3,938,534 as of July 19, 2024. (Pl. Ex.

107.001.) The court calculated present value as of July 2026 the same way it did for the other

costs. See footnote 17, supra.

Permit. The present value of those penalties is approximately $100,000.23 In total,

then, the economic benefit Republic derived from its unlawful conduct is

approximately $4,599,120.

B. Other § 1319(d) Factors

1. Seriousness of Republic’s Violations

Courts tend to consider the following metrics in evaluating the seriousness

of CWA violations: (1) the number and frequency of violations; (2) the degree of

the violations; and (3) the actual or potential harm caused to the environment and

the toxicity of pollutants. See Powell Duffryn, 913 F.2d at 79; United States v.

Righter, No. 08-cv-0670, 2010 WL 4977046, at *3 n.3 (M.D. Pa. Dec. 2, 2010);

United States v. Mun. Auth. of Union Twp., 929 F. Supp. 800, 807 (M.D. Pa. 1996),

aff’d, 150 F.3d 259 (3d Cir. 1998). Each of these metrics reveal that Republic’s

violations were severe.

Start with the number and frequency of violations. Republic violated its

NPDES permit 419 times between July 2019 and April 2023. That is a substantial

number of violations. See Powell Duffryn, 913 F.2d at 79 (agreeing with district

court that 386 violations were “a very large number of violations”). These

23 LSRA’s expert estimated that the present value of the stipulated penalties was a little over

$100,000 as of February 2026. (Trial Tr. 79:10–13.) The court uses $100,000 as a reasonable

estimate of the stipulated penalties’ current present value. See Sierra Club, Lone Star Chapter v.

Cedar Point Oil Co., 73 F.3d 546, 576 (5th Cir. 1996) (explaining a court need only make a

“reasonable approximation” of economic benefit); Powell Duffryn, 913 F.2d at 80 (same).

violations occurred regularly and consistently. Between July 2019 and April 2023,

Republic violated its osmotic pressure monthly limit in 42 of 46 possible months,

i.e., 91% of months. (PFF ¶ 49.) It violated the boron monthly average

concentration limit in all 39 possible months and its boron average mass limit in 31

of those months, i.e., 79% of months. (Id.) Indeed, the evidence demonstrates a

troubling pattern of unlawful conduct. See United States v. Smithfield Foods, Inc.,

972 F. Supp. 338, 343 (E.D. Va. 1997), aff’d in relevant part and vacated on other

grounds, 191 F.3d 516 (4th Cir. 1999) (describing violations in 69% of months at

one outfall and 76% at another as “very frequent”).

This pattern is made worse by the fact that Republic violated its effluent

limits to a considerable degree. For 50.5% of its daily maximum violations,

Republic exceeded the effluent limits by over 100%. (See PFF ¶ 50.) For 34.5%

of those violations, Republic exceeded the limits by between 200 and 600%. (See

id.) Republic’s violations of its monthly average limits were no better. For about

51% of those violations, Republic exceeded the limits by over 100%. (See id.) For

about 19.6% of those violations, Republic exceeded the limits by over 300%. (See

id.) Clearly, a substantial percentage of Republic’s violations were egregious. See

PIRG v. Powell Duffryn Terminals, Inc., 720 F. Supp. 1158, 1161 (D.N.J. 1989),

aff’d in relevant part and vacated on other grounds, 913 F.2d 64 (3d Cir. 1990)

(describing violations as “very serious in nature” when 67% of them exceed limits

by 100% and 50.5% of them exceeded limits by 200%). Republic’s average

exceedances also demonstrate the severity of Republic’s violations. On average,

Republic violated its boron concentration average limit by 339%, its boron

concentration maximum limit by 236%, its boron mass average limit by 44%, its

boron mass maximum limit by 33%, its osmotic pressure average limit by 82%,

and its osmotic pressure daily limit by 52%. (PFF ¶ 51.) Republic was not

narrowly violating its effluent limits. In many instances, it was significantly

violating them.

This unlawful conduct posed a serious risk of harm to the environment.

Republic posits that this §1319(d) factor “weighs heavily against the imposition of

a significant civil penalty because” LSRA failed to prove actual or potential harm

to the environment. (Doc. 113, p. 21.) Republic is correct that LSRA failed to

prove any actual, quantifiable harm to Kreutz Creek. But “actual harm to the

environment . . . need not be proven to establish that substantial penalties are

appropriate.” Union Twp., 929 F. Supp. at 807.

Republic’s conduct posed a significant threat of harm, and its argument to

the contrary ignores reality. For one, Pennsylvania has deemed boron a toxic

substance, 25 Pa. Code § 93.8c, which means it is or may “in sufficient quantity or

concentration . . . become[] harmful to human, animal or plant life,” id. § 93.1.

Given the potential dangers of toxic substances, “it is appropriate to consider the

toxic/conventional pollutant distinction when weighing the seriousness of a permit

violation.” Union Twp., 929 F. Supp. at 808; accord Powell Duffryn, 913 F.2d at

79. The court cannot ignore that Republic’s most egregious exceedances, on

average, involved its boron limits.

Moreover, Republic specifically violated WQBELs. (See PFF ¶ 8.) These

limits are designed “to ultimately protect the receiving water body so that [it]

meet[s] state water quality standards.” (Trial Tr. 114:11–19.) Indeed, their aim is

to promote a water quality that “assure[s] protection of public health, public water

supplies, agricultural and industrial uses, and the protection and propagation of a

balanced population of shellfish, fish and wildlife, and allow[s] recreational

activities in and on the water.” 33 U.S.C. § 1312(a). Or, as Pennsylvania defines

it water-quality criteria, “water may not contain substances attributable to . . .

discharges in concentration or amounts sufficient to be inimical or harmful to the

water uses to be protected or to human, animal, plant or aquatic life.” 25 Pa. Code

§ 93.6(a). The effluent limits for osmotic pressure and boron, as WQBELs, are by

definition intended to protect human and environmental health. Violating

WQBELs, like Republic did, will necessarily create the potential for harm to

human and environmental health.

In sum, the seriousness of Republic’s violations is unmistakable. They were

numerous, frequent, severe, involved toxic substances, and created a real threat of

harm to Kreutz Creek and those who use it. A meaningful penalty is warranted

under these circumstances.

2. Republic’s History of Violations

Republic insists that this is a mitigating factor, because it has no history of

violations involving boron or osmotic. (Doc. 113, p. 24.) It also contends that

“[t]he purpose of this factor is to prevent recidivism and penalize repeat violators.”

(Id.) The court agrees that this factor is intended, in part, to penalize repeat

violators of the CWA. To its credit, no evidence suggests Republic has violated

the CWA before the events giving rise to this case. See United States v. Andrews,

No. 3:20-cv-1300, 2024 WL 6972657, at *15 (D. Conn. Mar. 27, 2024) (“The

absence of any past violation of environmental laws can help mitigate the

penalty.”).

But, this factor focuses on more than just recidivism. It takes into account

“the duration of defendants' current violations, whether defendants have committed

similar violations in the past, and the duration and nature of all of the violations,

including whether the violations are perpetual or sporadic.” Smithfield Foods, 972

F. Supp. at 349; accord City of Mountain Park v. Lakeside at Ansley, LLC, No. 05-

cv-2775, 2011 WL 13167917, at *3 (N.D. Ga. July 21, 2011); Catskill Mountains

Chapter of Trout Unlimited, Inc. v. City of New York, 244 F. Supp. 2d 41, 52

(N.D.N.Y. 2003), aff’d in relevant part and remanded on other grounds, 451 F.3d

77 (2d Cir. 2006); United States v. Gulf Park Water Co., 14 F. Supp. 2d 854, 864

(S.D. Miss. 1998). In other words, what is relevant under this factor is Republic’s

“entire history of violations,” not its history of violations excluding the conduct

giving rise to this case. Pub. Interest Research Grp. of N.J., Inc. v. Magnesium

Elektron, Inc., No. 89-cv-3139 1995 WL 461252, at *7 n.3 (D.N.J. Mar. 9, 1995)

(emphasis added).

Republic’s violations of the 2017 Permit spanned nearly six uninterrupted

years, between October 2017 and April 2023. This is a duration that courts have

called “lengthy,” Union Twp., 929 F. Supp. at 807, and “significant,” Smithfield

Foods, 972 F. Supp. at 349. In fact, violations lasting half the length of Republic’s

have been found to be “serious” enough to justify “a significant upward adjustment

of the total penalty.” Idaho Conservation League v. Atlanta Gold Corp., 879 F.

Supp. 2d 1148, 1168 (D. Idaho 2012). This court comes to a similar conclusion.

While nothing in the record suggests that Republic violated the CWA before 2017,

its violations in this case were not limited in duration. They lasted for a prolonged

period of time, and the court cannot ignore this when imposing a penalty. On

balance, Republic’s history of violations weighs in favor of increasing the penalty.

3. Republic’s Good-Faith Efforts to Comply with 2017 Permit

Two primary considerations drive the analysis under this factor. The first is

the swiftness with which Republic attempted to come into compliance with the

2017 Permit. See, e.g., Union Twp., 929 F. Supp. at 808 (contemplating “delay in

meaningfully confronting . . . permit violations”). The second is whether Republic

took steps “to decrease [its] number of violations” or “to mitigate the impact of

[its] violations on the environment.” Smithfield Foods, 972 F. Supp. at 349–50.

As to the swiftness of its remediation efforts, Republic was slow to respond

meaningfully. Republic had data going back to 2010 suggesting its actual

historical discharges often exceed the limits that the 2017 Permit would eventually

place on boron and osmotic pressure. (Def. Ex. 16.012, 14.) Republic also knew

as soon as it saw the draft NPDES permit in November 2016 that its wastewater

treatment facility was unable to satisfy the effluent limits for osmotic pressure and

boron. See footnotes 7 & 8, supra. Nevertheless, Republic did not even have

conversations about remediation until July 2018. (Pl. Ex. 9.002.) From those July

2018 conversations, Republic concluded that “the only long-term remedy” for this

noncompliance was installing a reverse osmosis system. (Id. (emphasis added).)

Despite this knowledge, Republic did not definitively decide to install such a

system until over one-and-one-half years later, in February 2020. (PFF ¶ 33.)

Republic then took still another nearly two years before it actually approved the

installation of the reverse osmosis system. (Pl. Ex. 58.001.) In all, Republic

dragged its heels on the path towards compliance for about six years. This level of

indifference “do[es] not speak highly of [Republic’s] good faith in this matter.”

Union Twp., 929 F. Supp. at 808 (faulting defendant for waiting about two years to

take any remedial actions).

As for interim mitigation steps, Republic took none. Republic just kept

discharging untreated leachate into Kreutz Creek. It is not clear that there was no

interim mitigation possible. At least two internal documents suggest that Republic

could have trucked the leachate offsite. (Def. Ex. 40.006; Pl. Ex. 58.001.) At the

very least, Republic did not rule out the possibility of using trucking as a way to

minimize its pollution. It could have analyzed the market capacity for trucked

leachate, but it did not. (Trial Tr. 204:21–205:14.) Instead, Republic simply

assumed that mitigating steps were impossible and decided that the expedient

option would be to keep polluting Kreutz Creek. That was certainly far less

expensive for Republic at the time.

Republic contends that several of its actions demonstrate good faith. These

include their: (1) self-reporting; (2) investigation of improving controls and best

management practices: (3) compliance with the TRE process; (4) compliance with

the COA; (5) financial commitment to install the reverse osmosis system; and (6)

on-time installation of the reverse osmosis system in the face of COVID-19-related

issues with supply chain. (Doc. 113, pp. 15–21.) Looking at each of these actions,

however, reveals that any good faith they do demonstrate does not outweigh the

years of disregard that Republic exhibited.

First, Republic did timely notify PADEP of its compliance issues. (See, e.g.,

Def. Ex. 10.002 (discharge monitoring report notifying PADEP of Republic first

osmotic pressure violation).) In this way, Republic complied with its regulatory

obligation under the 2017 Permit to submit reports of its compliance monitoring

activities. (See Def. Ex. 9.017.) Yet, complying with reporting requirements

hardly mitigates the fact that Republic took so long to address severe discharge

violations. Cf. Pub. Interest Research Grp. of N.J., Inc. v. Elf Atochem N. Am.,

Inc., 817 F. Supp. 1164, 1180 (D.N.J. 1993) (“As a general matter, discharge

violations will be considered more ‘serious’ than monitoring violations.”).

Second, Republic offered testimony that it conformed with its general

practice of investigating control and best management practices. (Trial Tr.

359:19–360:4.) Yet, the record is devoid of specific instances where Republic

implemented controls or practices to mitigate its pollution. This is likely because it

did nothing of the sort. Republic knew by July 2018 that such measures were

going to be ineffective and that only a reverse osmosis system would achieve

compliance. (Pl. Ex. 9.002.) It then took four years to finally install that system

and did not actually consider interim mitigation measures in the meantime. The

fact that Republic might have briefly pondered potential controls or best

management practices does not lessen the significance of this delay.

Third, Republic’s supposed compliance with the 2017 Permit’s TRE process

hardly evidences good faith. To start, the TRE process—which is designed, in

short, to determine how a permittee can achieve compliance—was mostly

unnecessary here. Republic knew early on that a reverse osmosis system was “the

only long-term” way to become complaint. (Pl. Ex. 9.002.) As Republic’s own

actions demonstrate, it could have immediately sought a new WQM Permit to

install the system, rather than wait for the TRE reports to tell them what they

already knew. (Trial Tr. 395:8–12.) This is not to say that TRE reports are

meaningless (they are not) or are not required by the 2017 Permit (they are). It is

to say, however, that Republic could have moved quicker than it did. Even putting

this aside, Republic was dilatory in completing the TRE process. It submitted its

Phase I and II reports beyond their deadlines by about six-and-one-half months and

eleven-and-one-half months, respectively. (PFF ¶¶ 34, 41.) If anything,

Republic’s conduct during the TRE process demonstrates nonchalance rather than

good faith.

Fourth, Republic commendably did not violate the COA-imposed deadlines

for achieving compliance. But this showing of good faith only takes Republic so

far. The COA was not a prerequisite to Republic’s achieving compliance with the

2017 Permit. (PFF ¶ 40.) Republic could have, and should have, moved towards

installing a reverse osmosis system before it entered into the COA in August 2020,

i.e., two years after it knew it had to install such a system and four years after it

knew compliance would be impossible. Given this gap, it is difficult to see how

the COA, in Republic’s words, “expedite[d] . . . the response to the exceedances.”

(Doc. 113, p. 19.)

Fifth, Republic applauds itself for spending $23 million to upgrade its

wastewater treatment facility. But this argument ignores that Republic spent a

fraction of that sum (about $3.5 million) to come into compliance with the boron

and osmotic pressure limits. It also misses the point. By waiting to expend that

money until after polluting for years, Republic realized a substantial economic

benefit.24 The fact that Republic eventually expended the money necessary to be in

compliance with the law does not itself speak to its good-faith efforts to avoid

exceedances.

Finally, Republic insists it deserves credit for completing the upgrades to its

wastewater treatment facility on-time in the face of global supply-chain issues

caused by the COVID-19 pandemic. Maybe so. But the court cannot ignore

Republic’s pre-construction efforts, which were not at all impacted by COVID-19.

(See Trial Tr. 254:9–12.) Republic knew that it was going to be non-compliant in

November 2016, did not decide to install a reverse osmosis system until February

24 LSRA correctly points out that Republic’s economic benefit would be greater if Republic

would have had to spend $23 million to install the reverse osmosis system. (Doc. 115, p. 10.)

For this reason, too, Republic’s boast about its $23-million investment rings hollow.

2020, and did not begin installing the system until mid-2022. This timeline of

events was not the unavoidable result of COVID-19, but rather a product of

Republic’s own decisions. Indeed, the fact that Republic was capable of

constructing and getting the improved system online so quickly in 2022-2023

underscores the impact of their delay in implementing this known solution.

In sum, Republic worked towards compliance—but not with the haste it

should have. The court, therefore, will increase Republic’s penalty accordingly.

4. Economic Impact on Republic

The economic-impact factor can justify a reduced penalty to avoid “a

ruinous effect” on a defendant. Gulf Park Water, 14 F. Supp. 2d at 868 (citing,

inter alia, Powell Duffryn, 720 F. Supp. at 1165); accord Andrews, 2024 WL

6972657, at *16. Conversely, this factor can justify a heightened penalty when it is

necessary to achieve “deterrence and/or punishment.” In re Oil Spill by the Oil Rig

“Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 148 F. Supp. 3d

563, 575 (E.D. La. 2015).

Neither party introduced evidence at trial concerning the economic impact a

civil penalty would have on Republic. In their briefing, the parties agreed that this

factor should have no effect on the court’s analysis. (Doc. 111, p. 19; Doc. 113, p.

23.) Accordingly, this factor does not weigh in favor of increasing or reducing

Republic’s penalty.

5. Other Matters Justice May Require

Republic proffers two additional considerations that it contends warrant

imposing a reduced penalty. It first argues that “the underlying goals of CWA civil

penalties—present compliance and future deterrence—have already been

accomplished here.” (Doc. 113, p. 25.) Republic’s premise is mostly correct.

CWA civil penalties are meant to promote immediate compliance with the law and

deter future violations. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 185 (2000). This deterrent effect is aimed at both the particular

defendant in a case (specific deterrence) and regulated entities at large (general

deterrence). Andrews, 2024 WL 6972657, at *12; United States v. Bunn, No. 20-

cv-107, 2021 WL 4865261, at *3 (D. Mont. Aug. 31, 2021); United States v.

Brace, No. 17-cv-00006, 2020 WL 956460, at *4 (W.D. Pa. Feb. 27, 2020); Trout

Unlimited, 244 F. Supp. 2d at 48; Union Twp., 929 F. Supp. at 806; Elf Atochem,

817 F. Supp. at 1172.

Republic’s conclusion, however, is mostly wrong. Civil penalties may not

be necessary to ensure Republic’s immediate compliance with the law, since it has

gone without a violation since April 2023. But that does not mean civil penalties

achieve no deterrent effect. To achieve specific and general deterrence, a civil

penalty must do two things:

First, it must encompass the economic benefit of noncompliance to

ensure that the violator does not profit from its violation of the law.

Second, [it] must include a punitive component in the form of a sum in

addition to economic benefit which accounts for the degree of

seriousness and/or willfulness of the violations. Without the second

component, those regulated by the Clean Water Act would understand

that they have nothing to lose by violating it.

Union Twp., 929 F. Supp. at 806. Republic’s request that the court not impose any

additional penalty would significantly undermine § 1319(d)’s deterrence objective.

Such an outcome would allow Republic to keep millions of dollars in economic

benefit—resulting in no specific deterrence—and send the message to other

regulated entities that serious violations of the CWA will be met with no

consequences—resulting in no general deterrence. Neither of those scenarios is

acceptable.

Republic next argues that imposing a civil penalty here “would amount to a

usurpation of PADEP’s regulatory authority.” (Doc. 113, p. 25.) It contends that

PADEP determined an appropriate penalty for Republic and this court should not

second guess PADEP’s “well-founded regulatory actions.” (Id. at 26.) This

argument is unavailing.

To be sure, Congress envisioned that primarily states would bring CWA

enforcement actions and did not want citizen suits impeding the states’ efforts.

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60

(1987). This is why such suits generally “are proper only ‘if the Federal, State, and

local agencies fail to exercise their enforcement responsibility.’” Id. (quoting S.

Rep. No. 92-414, at 62 (1971)). Otherwise, citizens suits could “curtail[]

considerably” a state agency’s “discretion to enforce the [CWA] in the public

interest.” Id. To avoid this, the CWA bars citizen suits when “a State has

commenced and is diligently prosecuting an action under a State law comparable

to [§ 1319(g)].” 33 U.S.C. § 1319(g)(1)(A). This is the standard Congress decided

was the proper balance between permitting citizen suits and not usurping state

enforcement authority.

The court already held that § 1319(g)(1)(A) did not bar this case, since the

Clean Streams Law—under which PADEP issued the COA—was not

“comparable” to the CWA. (Doc. 65, pp. 16–20.) Implicit in this holding is a

determination that LSRA’s citizen suit would not usurp PADEP’s enforcement

authority. Given this holding, letting Republic off the hook would be, if anything,

a usurpation of Congress’s authority to determine when a citizen suit and resulting

civil penalties are appropriate and necessary.

6. Total Penalty

A substantial penalty that is greater than the value of Republic’s economic

benefit is warranted. LSRA argues that the penalty here should be substantially

identical to that of Union Township. (Doc. 111, pp. 20–22.) Specifically, LSRA

calculated the Union Township defendant’s penalty to be equal to $854 per day of

violations, not including economic benefit. (Id. at 21.) LSRA wants the court to

impose the same $854 penalty for every day Republic violated the 2017 Permit,

which LSRA claims totals 3,711 days. (Id. at 5.) LSRA arrives at that number of

days by adding the number of Republic’s daily violations (307) and the number of

days in each month that Republic tallied a monthly violations (3,404). (Id.) In

total, LSRA would have Republic pay a penalty equal to its economic benefit plus

the product of $854 and 3,711, which equals about $7.5 million. (Id. at 21.)

The court agrees that Union Township is a helpful comparator but disagrees

with LSRA’s methodology for calculating an appropriate penalty. In short, the

court is hesitant to make Republic’s penalty a function of violations days, because

LSRA has failed to explain why all of Republic’s monthly average violations

warrant the maximum number of violations days. This court must exercise the

discretion to assess more than one violation day for a monthly average violation

“based on whether [those] violations are already sufficiently sanctioned as

violations of a daily maximum limit.” United States v. Allegheny Ludlum Corp.,

366 F.3d 164, 169 (3d Cir. 2004). LSRA makes no argument on this point.

Rather than adopt LSRA’s methodology, the court will impose a penalty

relative to Republic’s economic benefit. This approach better aligns with the logic

of the “bottom up” approach and equally serves the twin goals of specific and

general deterrence. Analogous cases reveal that courts have imposed penalties

equal to between about 1.5 times and 3 times a defendant’s economic benefit. See

Atlanta Gold, 879 F. Supp. 2d at 1167, 1169 (approximately 1.43 times);

Smithfield Foods, 972 F. Supp. at 349, 354 (3 times); Union Twp., 929 F. Supp. at

806, 809 (approximately 2 times). Upon review of these cases and the § 1319(d)

factors, a civil penalty worth roughly double Republic’s economic benefit is

warranted here. Accordingly, the court will impose a penalty in the amount of

$9,200,000.

C. Form of Relief

One final issue is left to be addressed. LSRA asks that the court order

Republic to establish a remedial fund to alleviate harm to Kreutz Creek rather than

pay a civil penalty to the United States Treasury.25 (Doc. 111, pp. 23–25.) This

fund would, if LSRA had its way, sponsor projects supervised by the Watershed

Alliance of York (“WAY”).

The court has the power to order the creation of such a fund “through its

equitable jurisdiction.” Powell Duffryn 913 F.2d at 82. But it may not do so

unless “there is a nexus between the harm and the remedy.” Id.

LSRA has failed to establish this nexus. At trial, the Lower Susquehanna

Riverkeeper and LSRA’s executive director, Ted Evgeniadis (“Riverkeeper”),

vaguely described WAY’s projects. (See Trial Tr. 116:6–11, 118:18–119:12.) He

25 A “civil penalty” under § 1319(d) is payable only to the Treasury. Powell Duffryn, 913 F.2d at

82.

noted that the projects include “stream[-]channel and habitat[-]restoration

projects,” “infrastructure upgrade[s]”, and flood-mitigation projects. (Trial Tr.

116:6–11.) The Riverkeeper did not elucidate how any of these projects are in any

way designed to treat the harm caused by high levels of osmotic pressure or boron.

(See Trial Tr. 116:6–11.) Instead, he opaquely explained that the projects have

“different goals,” including “stream bank and habitat restoration,” reducing stream

velocity and energy, “improv[ing] aquatic life,” “creating wetland environments,”

and other things meant to “enhance water quality.” (Trial Tr. 118:21–119:12.)

LSRA’s position seemingly is that a sufficient nexus exists here because

Republic violated standards meant to maintain water quality and the projects that

the remedial fund would sponsor will address water-quality issues in Kreutz Creek.

(Doc. 115, p. 14.) That is too high a level of generality at which to establish a

nexus. Surely, there are myriad water-quality issues the projects could address that

have nothing to do with increased boron and osmotic pressure levels. To satisfy

Powell Duffryn’s nexus requirement standard, LSRA had to establish that WAY’s

projects would address the harms posed by high levels of boron or osmotic

pressure. It did not, so it is not entitled to the equitable relief it seeks.

CONCLUSION

For the foregoing reasons, the court will impose a civil penalty, pursuant to

33 U.S.C. § 1319(d), against Republic in the amount of $9,200,000. An

appropriate order and judgment will issue accordingly.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: July 27, 2026