Petition for Writ of Certiorari — McKeown v. Delaware Bridge Authority

ye = Cun, ius

LED

lids i Mar 21 2003

; ~~

we 5)

No.

: In The

Supreme Court of the United States

KEVIN MCKEOWN

Petitioner,

vs.

THE DELAWARE BRIDGE AUTHORITY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Kevin McKeown

1200 Pennsylvania Ave., N.W.

P.O. Box 7228

Washington, D.C. 20044-7228

(202) 223-8030

Pro Se Petitioner

Gi Wii sv tise nseritic nd mc.

QUESTIONS PRESENTED

Whether toll booths violate the Clean Air Act when

they slow and otherwise impede the movement of

toxic tail pipe emitting-vehicles which unnecessarily

adds to environmental pollutants?

Whether, in light of Whitman, EPA, et al. v.

American Trucking Association, 531 U.S. 457, 121

S. Ct. 903 (decided February 27, 2001) which

affirmed a Court of Appeals finding that §109(b) of

the Clean Air Act unambiguously bars cost

considerations, applies to the operation of toll

booths?

Whether operators of toll booths violate the civil

rights of toll payers by requiring an unnecessary

increase in the period of time a toxic tail pipe

emitting vehicle is operated which needlessly

increases vehicular pollutants to the environment?

ii

PARTIES TO THE PROCEEDING

The parties to the proceeding not noted in the case

caption are:

THE PORT AUTHORITY OF NEW YORK

AND NEW JERSEY,

Robert Boyle, Executive Director;

THE NEW YORK STATE THRUWAY

AUTHORITY,

John R. Platt, Executive Director;

THE METROPOLITAN TRANSPORTATION

AUTHORITY,

E. Virgil Conway, Chairman;

THE NEW JERSEY TURNPIKE AUTHORITY,

James Weinstein, Commissioner,

Frank X. McDermott, Chairman;

THE GARDEN STATE PARKWAY AUTHORITY,

Joseph E. Buckelew, Chairman

THE DELAWARE TRANSPORTATION

AUTHORITY, Nathan Hayward, III, Secretary.

The Petitioner has no parent or subsidiary companies.

iii

TABLE OF CONTENTS

Page

EE SE PS ee aD i

SUI DIN oo. con cnc cece sscceccccsccscccdssceccesulll

Ele ccc yiyaccac sees ixtucancdsnca<ctey WY

SEC MIEN PUEIIIOUIOIID 55550 scecccacccccecocstdecsssccsscescenc

Tee nee elec icdweislasoeasacsdencesece snd

Nee andl ceacusanencencsoveccassasel

es ccc ecaneuguchscnansescsceceescsccel

Constitutional and Statutory Provisions Involved .............1

Do ceva cava scssniessvaccaccuccecdecdeuscacssel

Reasons for Granting the Writ .........................00.0..... 4

I. The decision of the Court of Appeals conflicts

with the intent of Congress and provisions of the

Clean Air Act. Toll booths violate the Clean Air

Act when they slow and otherwise impede the

movement of toxic tail pipe emitting vehicles

which unnecessarily adds to environmental

pollutants. Recent environmental

iv

TABLE OF CONTENTS

studies, along with Amicus Curiae briefs, will be

presented to this Honorable Court for consideration

Il. This case offers this Honorable Court the

Opportunity to revisit Whitman, EPA, et al. v.

American Trucking Association, 531 U.S. 457, 121

S. Ct. 903 (decided February 27, 2001) which

affirmed a Court of Appeals finding that §109(b) of

the Clean Air Act unambiguously bars cost

considerations, and its pertinent application to the

operation of toll booths.

III. | This case presents important questions which impacts

the health, welfare and civil rights of every citizen of

the United States, and is not limited to only the states

in which toll booths operate. Operators of toll booths

not only violate the civil rights of toll payers by

requiring an unnecessary increase in the period of

time a toxic tail pipe emitting vehicle is operated,

needlessly increases vehicular pollutants to the

environment, such polluting extends beyond state

boundaries in the nation’s ambient air.

<A Ea Re man Mp mE NR [tars eb eI AY Yay oa Sen 6

TABLE OF CITED AUTHORITIES

Cases:

Whitman, EPA, et al. v. American Trucking

Association, 531 U.S. 457, 121 S. Ct. 903

(decided February 27, 2001)

Acts of Congress:

Clean Air Act (“CAA”)

vi

TABLE OF APPENDICES

APPENDIX A:

SUMMARY ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND

CIRCUIT DATED, DECIDED AND FILED

DECEMBER 21, 2001 (No. 01-7487)

APPENDIX B:

MEMORANDUM AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF NEW YORK

DATED, SO ORDERED AND FILED MARCH

29, 2001 (No. 00-0714)

Petitioner Kevin McKeown respectfully requests for

a writ of certiorari to be issued to review the decision of the

United States Court of Appeals for the Second Circuit

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Second Circuit is unreported and is attached hereto as

Appendix A. The Opinion of the District Court granting

dismissal of Petitioner's Amended Complaint is unreported

and is attached hereto as Appendix B.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Second Circuit (Appendix A) was entered on

December 21, 2001. This Honorable Court’s jurisdiction is

invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves provisions of the Clean Air Act.

STATEMENT OF THE CASE

This is an appeal from an order of Second Circuit

Court of Appeals affirming that of the United States District

Court for the Southern District of New York, dismissing the

Amended Complaint of Appellants, Kevin McKeown and

No More Tolls.

In particular, the district court declined to name the

Environmental Protection Agency as a necessary party to the

action, either as a defendant or as a party-plaintiff, ex. rel.

The lower court granted summary judgment when

significant triable issues of fact existed, most notably the

violations of the Clean Air Act (“CAA”).

Further, the district court found that “motor vehicles

are the sources of the pollutants complained of...”

(Appendix B) when pleadings clearly presented the increase

of additional pollutants, caused by the existence of toll

booths, as the issue complained of in the Amended

Complaint. The district court stated that “drivers would still

experience backups” (Appendix B) while the issue clearly

presented was the unnecessary increase in toxic tailpipe

emissions.

In 1970, the United States Congress adopted the first

major Clean Air Act (“CAA”) and established the United

States Environmental Protection Agency (“EPA”). Congress

specifically empowered the EPA with broad responsibilities

for regulating motor vehicle pollution.

In 1990, Congress amended the Clean Air Act to

require further reductions in hydrocarbons (HC), CO, NOX

and particulate emissions. Congress specifically addressed

the need to further reduce the pollution from motor vehicles

by setting additional tailpipe standards.

It is estimated that 87% of cancer-causing benzene in

the air comes from vehicles. An August, 1994 EPA fact

sheet indicates that, “... the personal automobile is the single

greatest polluter, as emissions from millions of vehicles on

oe i “hh >

NO ae ee eae eae ye

the road add up. Driving a private car is probably a typical

citizen’s most ‘polluting’ daily activity.”

In December of 1998, the EPA’s office of Air and

Radiation advised that “[p]Jeople exposed to toxic air

pollutants at sufficient concentrations and for sufficient

durations have an increased chance of getting cancer or

experiencing other serious health effect.”

Toll booth operators illegally slow and otherwise

impede vehicular movement which unnecessarily

increases toxic tail pipe emissions and creates an imminent

and substantial endangerment to health and the environment

in violation of the CAA.

CAA, Section 111, requires a standard for emissions

of air pollutants which reflects the degree of emission

limitation achievable through the application of the best

technological system of emission reduction.

CAA, Section 1311, requires the “best practicable

control technology availab!e.” Toll booth operators further

violate Section 112 by not reducing emissions of hazardous

air pollutants.

Toll booth operators are seriously violating

provisions of the CAA, unnecessarily adding to the

polluting of the environment and needlessly contributing to

health hazards.

Toll booth operators cause needless delays to

vehicles, drivers, occupants and the economic community.

Any driver delayed only ten (10) minutes each workday is

deprived of forty (40) hours per annum. (Assumption: 5

minute delay per one way travel; 5 day work week; 48 week

work year). Although the economic damage to the Federal,

State and local governments, as well as businesses and

individual workers, caused by the existence of toll booths

and the actions of toll booth operators can easily be

calculated in the billions of dollars, the main focus of this

petition is the environmental damage and violation of the

CAA.

Additional issues of national importance raised in the

Amended Complaint, but not the main focus of the instant

petition, include toll booth operators reckless and negligent

violation of Federal and State highway safety laws by

interrupting the normal flow of vehicular movement by

widening and narrowing the areas in which vehicles travel.

Roadway approach areas adjacent to toll booths greatly

increase the number of lanes existent prior to the toll booth

approach area in unlawful multiples causing unsafe roadway

conditions.

If not for the existence of toll booths, additional

hazardous air pollutants would not be produced.

REASONS FOR GRANTING THE WRIT

1. The decision of the Court of Appeals conflicts with

the intent of Congress and provisions of the Clean

Air Act. Toll booths violate the Clean Air Act when

they slow and otherwise impede the movement of

toxic tail pipe emitting vehicles

which unnecessarily adds to environmental

pollutants. Recent environmental studies, along

with Amicus Curiae briefs, will be presented to

this Honorable Court for consideration.

This case offers this Honorable Court the

Opportunity to revisit Whitman, EPA, et al. v.

American Trucking Association, 531 U.S. 457, 121

S. Ct. 903 (decided February 27, 2001) which

affirmed a Court of Appeals finding that §109(b) of

the Clean Air Act unambiguously bars cost

considerations, and its pertinent application to the

operation of toll booths.

This case presents important questions which impacts

the health, welfare and civil rights of every citizen of

the United States, and is not limited to only the states

in which toll booths operate. Operators of toll booths

not only violate the civil rights of toll payers by

requiring an unnecessary increase in the period of

time a toxic tail pipe emitting vehicle is operated, and

needlessly increasing vehicular pollutants to the

environment, but nationally since such polluting

extends beyond state boundaries in the ambient air.

CONCLUSION

Accordingly, Petitioner respectfully prays that this

Honorable Court grant the petition for Writ of Certiorari.

Respectfully submitted,

; OL

Kevin McKeown

1200 Pennsylvania Ave., NW

Box 7228

Washington, D.C. 20044-7228

202-223-8030

Pro Se Petitioner

APPENDIX A -- SUMMARY ORDER OF THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT DATED, DECIDED AND FILED

DECEMBER 21, 2001

No. 01-7487

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED

IN THE FEDERAL REPORTER AND MAY NOT BE

CITED AS PRECEDENTIAL AUTHORITY TO THIS OR

ANY OTHER COURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUESTENT STAGE OF THIS CASE, IN A

RELATED CASE, OR IN ANY CASE FOR PURPOSES

OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on the

21* day of December two thousand one.

Present:

HONORABLE AMALYA L. KEARSE,

HONORABLE RALPH K. WINTER,

HONORABLE GUIDO CALABRESI, Circuit Judges

Appendix A-I1

KEVIN MCKEOWN, NO MORE TOLLS,

Plaintiff-Appellant.,

THE DELAWARE BRIDGE AUTHORITY,

Defendant,

THE PORT AUTHORITY OF NEW YORK AND NEW

JERSEY, Robert Boyle, Executive Director, THE NEW

YORK STATE THRUWAY AUTHORITY, John R. Platt,

Executive Director, THE METROPOLITAN

TRANSPORTATION AUTHORITY, E. Virgil Conway,

Chairman, THE NEW JERSEY TURNPIKE AUTHORITY,

James Weinstein, Commissioner, Frank X. McDermott,

Chairman, THE GARDEN STATE PARKWAY

AUTHORITY, John D. Porcari, Chairman, THE

DELAWARE TRANSPORTATION AUTHORITY, Nathan

Hayward, III, Secretary,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of New York

No. 00-714

-_

William H. Pauley, III, United States District Judge

Appendix A-2

See nee an, al

eet os SR dare ™'* CF Darr wth

Appearing for Appellant: Kevin McKeown, pro se,

Washington, D.C.

Appearing for Appellees

Port Authority and Boyle: Milton H. Pachter,

N.Y., NY.

Appearing for Appellees

New York State Thruway

Authority and Platt: Norman Spiegel, Ass’t Att’y

Gen., N.Y., N_Y.

Appearing for Appellees

Metropolitan Transportation

Authority and Conway: Anthony P. Semancik,

N.Y., N.Y.

Appearing for Appellees

New Jersey Turnpike

Authority, Weinstein

and McDermott: Stuart M. Lederman, Riker,

Danzig, Scherer, Hyland &

Perretti, Morristown, N_J.

Appearing for Appellees

Maryland Transportation

Authority and Porcari: Deborah A. Donohue, Ass’t

Att’y Gen., Baltimore, Md.

Appendix A-3

Appearing for Appellees

Delaware Transportation

Authority and Hayward: Frederick H. Schranck, Dep’y

Att’y Gen., Dover, Del.,

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the record from

the United States District Court for the Southern District of

New York, and was submitted by plaintiff pro se and by

counsel for defendants.

: ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judgment of

said District-Court be and it hereby is affirmed substantially

for the reasons stated in Judge Pauley’s Memorandum and

Order dated March 29, 2001.

We have considered all of plaintiff's contentions on

this appeal and have found them to be without merit. The

judgment of the district court is affirmed.

FOR THE COURT:

ROSEANN B. MacKECHNIE,

Clerk

By: /s

Appendix A-4

APPENDIX B -- MEMORANDUM AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK DATED, SO

ORDERED AND FILED MARCH 239, 2001

No. 00-0714

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ex rel., KEVIN MCKEOWN and

NO MORE TOLLS,

Plaintiffs,

-against-

THE PORT AUTHORITY OF NEW YORK AND NEW

JERSEY, ROBERT BOYLE, EXECUTIVE DIRECTOR:

THE NEW YORK STATE THRUWAY AUTHORITY,

JOHN R. PLATT, EXECUTIVE DIRECTOR; THE

METROPOLITAN TRANSPORTATION AUTHORITY, E.

VIRGIL CONWAY, CHAIRMAN; THE NEW JERSEY

TURNPIKE AUTHORITY, JAMES WEINSTEIN,

COMMISSIONER; FRANK X. MCDERMOTT,

CHAIRMAN; THE GARDEN STATE PARKWAY

AUTHORITY, JOSEPH E. BUCKELEW, CHAIRMAN:

Appendix B-]

THE MARYLAND TRANSPORTATION AUTHORITY,

JOHN D. PORCARI, SECRETARY; THE DELAWARE

RIVER AND BAY AUTHORITY, MICHAEL HARKINS,

EXECUTIVE DIRECTOR; THE DELAWARE “

TRANSPORTATION AUTHORITY, and ANNE P.

CANBY, SECRETARY,

Defendants.

MEMORANDUM AND ORDER

WILLIAM H. PAULEY III, District Judge:

Plaintiffs Kevin McKeown (“McKeown”) and his

organization No More Tolls (collectively “plaintiffs”)

commenced this pro se citizen’s suit against defendants, state

authorities and officials responsible for operating toll roads,

bridges and tunnels in New York, New Jersey, Delaware and

Maryland, alleging that they operate and maintain toll booth

facilities in violation of the Clean Air Act, 42 U.S.C. § 7401,

et seg. (“CAA”) , the Clean Water Act, 33 U.S.C. § 1251, et

seq. (“CWA”), the Resource Conservation and Recovery

Act, 42 U.S.C. § 6901, et seq. (“RCRA) , Occupational

Safety and Health Administration (“OSHA”) regulations,

Federal Highway Administration regulations, nuisance law,

and civil rights law. x

Appendix B-2

ae ag

Currently before this Court are defendants’ motions

to strike the Environmental Protection Agency (“EPA”) and

its Administrator Carol Browner from the amended

complaint, and to dismiss the amended complaint for lack of

subject matter jurisdiction, lack of personal jurisdiction over

the non-New York defendants, improper venue and failure to

sate a claim. Defendants also argue that the Court should

decline to exercise its jurisdiction over the pendent state

claims. For the following reasons, defendants’ motions are

granted.

Background

Plaintiff No More Tolls is a_ public interest

organization in Washington, D.C. (Am. Compl. § 9.) It is

“dedicated to the protection and enhancement of the

environment of the United States . . . . [I] supports effective

enforcement of Federal and State CAA, CWA, RCRA, and

other Federal and State laws.” (Am. Compl. § 8.) Plaintiff

McKeown is the Executive Director of No More Tolls. (Am.

Compl. § 9.) The only information revealed about

McKeown in the amended complaint is that he “has traveled

defendant[s’] operated roadways in excess of twenty years

and has sustained damages as a result of the operation of toll

booths as described in [the] [amended] complaint.” (Am.

Compl. ¥ 10.)

Defendants are state authorities and their directors

Appendix B-3

who are responsible for the administration of public

transportation including the operation of toll booths in New

York (the “New York defendants”), New Jersey (the “new

Jersey defendants”), Delaware (the “Delaware defendants”)

and Maryiand (the Maryland defendants”). (Am. Compl. {J

8-28)

On November 29, 1999, plaintiffs sent defendants a

Notice of Intent to Sue. The Notice of Intent to Sue states

that plaintiffs believe defendants are violating the CAA,

CWA and RCRA by operating toll booths.

On February 3, 2000, plaintiffs filed this action by

order to show cause, requesting a temporary restraining order

and a preliminary injunction. Plaintiffs assert claims under

the CAA, CWA, RCRA, ‘federal common law” nuisance,

negligence and civil rights laws, and state law against

defendants claiming that: (1) toll booth operators illegally

slow and otherwise impede vehicular movement which

unnecessarily increases toxic tailpipe emissions endangering

“health and the environment”; (2) toll booth areas are “point

sources” under the CWA and “cause the diminution of water

quality of the surface and subterranean waters and wetland

areas”; (3) toll booth operators violate the prohibition

against the operation of an open dump, and “continue

unpermitted discharge of pollutants into navigatable waters”;

(4) toll booth operators violate “an effluent standard or

limitation” by permitting discharges of !eachate from toll

Appendix B-4

booth locations; (5) toll booth and related operations fail to

use the best practicable control technology available to

reduce emissions; (6) toll booth operators are “major

sources” of hazardous air pollutants causing adverse

environmental effects to wildlife and aquatic life; (7) toll

booth operators are “generators” of hazardous waste and

violate hazardous waste standards by releasing pollutants and

other substances into the air, soil, surface and ground waters

in areas adjacent to the toll booths; (8) toll booth operators

violate the CWA and CAA by operating without permits;

and (9) toll booth operators knowingly and negligently

release hazardous air pollutants into the ambient air. (Am.

Comp. {J 42-56.)

Initially, plaintiffs requested that this Court enjoin

defendants during the pendency of this action from “slowing

or otherwise impeding the movement of vehicles to collect

tolls or any other activity that pollutes the air, water or soil of

the United Sates.” On February 8, 2000, this Court held a

hearing and denied plaintiffs’ motion.

On February 24, 2000, plaintiffs filed an amended

complaint adding the United States Environmental

Protection Agency (“EPA”) and EPA Administrator Carol

M. Browner as plaintiffs, and the Delaware River and Bay

Authority and its executive director Michael Harkins as

additional defendants. In all other respects, the amended

complaint is identical to the initial complaint. However,

Appendix B-5

plaintiffs did not serve the amended complaint until mid-

March, after defendants had filed their motions to dismiss

the initial complaint. (Semancik Decl. Supp. Mot. To Strike

Browner & EPA from Am. Compl. § 3.)

On March 9, 2000, this Court issued an order denying

plaintiffs’ motion for preliminary injunctive relief and a

temporary restraining order. On July 13, 2000, this Court

denied plaintiffs’ motion for reconsideration.

Discussion

I. Motion to Strike EPA and Carol Browner from

the Amended Complaint

Defendants argue that the EPA and Browner should

be stricken from the amended complaint because they did not

sign the amended complaint, McKeown and No More Tolls

have no authority to act on behalf of the EPA or its

administrator, and the EPA is not a necessary party.

The CAA, CWA and RCRA all permit a citizen to

bring a civil action to enforce those statutes on their own

behalf. See 33 US.C. § 1365(a) (“any citizen may

commence a civil action on his own behalf [under this

section] ...”; 42 U.S.C. § 6972(a) (“any person may

commence a civil action on his own behalf [under this

section] . . .”); 42 U.S.C. § 7604 (same). None of those

Appendix B-6

statutes authorizes a citizen to bring an action to enforce the

CAA, CWA or RCRA on behalf of the EPA or its

Administrator. Moreover, McKeown and No More Tolls

have not offered any reason why the EPA and Browner are

necessary parties. See, e.g., Friends of the Earth v. Carey,

535 F.2d 165, 173 (2d Cir. 1976) (noting that the CAA

“simply obligates the citizen plaintiff to provide the EPA

with notice of the . . violation and of the upcoming private

enforcement suit... . The agency can the decide for itself

whether or not to participate in the proceedings.”);

Metropolitan Washington Coalition for Clean Air v. District

of Columbia, 511 F.2d 809, 814-15 (D.C. Cir. 1975) (“The

[CAA} citizen suit provision contemplates actions against

the Administrator where he fails to perform a_non-

discretionary act. Alternatively, the citizen, after giving

sixty days notice to the Administrator, can proceed directly

against the violator. When the plaintiff elects this later

course, the Administrator has the right to intervene in the

suit, but he is not required to be a participant in such

litigation and his absence does not render the action infirm.”)

Accordingly, defendants' motions to strike the EPA

and Browner from the amended complaint are granted.

Further, because defendants moved to dismiss the initial

complaint before they were served with the amended

complaint, and because the amended complaint does not

materially differ from the initial complaint, defendants’

motions to dismiss the initial complaint are deemed motions

to dismiss the amended complaint.

Appendix B-7

Plaintiffs also substituted the Delaware River and

Bay Authority and its Executive Director Michael Harkins

for the Delaware Bridge Authority. It is not clear whether

those defendants were served with the amended complaint.

They have not answered or moved to dismiss it. However,

since the amended complaint is dismissed for lack of

standing and failure to state a claim, it is immaterial whether

they were served with the amended complaint.

Il. Motion to Dismiss Standards

On a Rule 12 motion to dismiss, the Court generally

must accept the factual allegations contained in the

complaint as true, and draw all reasonable inferences in

favor of the non-movant; it should not dismiss the complaint

“unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle

him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.

Ct. 99, 102 (1957); see also Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 507 U.S. 163,

164, 113 S.Ct. 1160, 1161 (1993) (noting that factual

allegations in the complaint must be accepted as true on

motion to dismiss); Press v. Quick & Reilly, Inc., 218 F.3d

121, 128 (2d Cir. 2000) (same). In order to survive

dismissal, a plaintiff must assert a cognizable claim and

allege facts that, if true, would support such a claim. See

Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). A

pro se litigant’s complaint, “however inartfully pleaded,”

Appendix B-8

must be held to a “less stringent standard[] than formal

pleadings drafted by lawyers... .” Haines v. Kerner, 404

U.S. 519, 520-21, 92 S. Ct. 594, 596 (1972).

On a Rule 12(b)(1) motion challenging the district

court’s subject matter jurisdiction, the Court may resolve the

disputed jurisdictional fact issues by referring to evidence

outside of the pleadings, such as affidavits, and if necessary,

hold an evidentiary hearing. See Zappia Middle East Constr.

Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir.

2000). However, when matters outside the pleadings are

presented on a motion to dismiss for failure to sate a claim

under Rule 12(b)(6), generally the district court must either

exclude the additional material and decide the motion on the

complaint alone or convert the motion to one for summary

judgment and afford all parties the opportunity to present

supporting material. See Morelli v. Cedel, 141 F.3d 39, 46

(2d Cir. 1998) (citing Carter v. Stanton, 405 U.S. 669, 671,

92 S. Ct. 1232, 1234 (1972)).

On a 12 (b) (2) motion the plaintiff bears the burden

of demonstrating that the court has jurisdiction over the

defendant. See Bank Brussels Lambert v. Fiddler Gonzalez

& Rodriquez, 171 F.3d 779, 784 (2d Cir. 1999) ; Kernan v.

Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999) (citing

Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d

560, 566 (2d Cir. 1996)). Since the parties have not

conducted discovery, the plaintiff need persuade the court

Appendix B-9

only that its factual allegations constitute a prima facie

showing of jurisdiction over the defendants. See Kernan 175

F.3d at 240; Jazini v. Nissan Motor Co., 148 F.3d 181, 184

(2d Cir. 1998). The plaintiff's prima facie showing may be

established solely by pleading, in good faith, legally

sufficient allegations of jurisdiction. See Ball v. Metallurgie

Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990).

The pleadings and any affidavits are construed in the light

most favorable to the plaintiff and all doubts are resolved in

its favor. A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d

76, 79-80 (2d Cir. 1993).

Similarly, on a Rule 12 (b) (3) motion to dismiss

based on improper venue, the burden of showing that venue

in the forum district is proper falls on the plaintiff. See, e.g.,

Blass v. Captial Int’] Security Group, No. 99-C V-5738 (FB),

2001 WL 301137, at *2 (E.D.N.Y. Mar. 23, 2001). In a case

involving multiple claims, the plaintiff must show that venue

is proper for each claim asserted, but dismissal of an

improperly venued claim is not warranted if it is factually

related to a properly venued claim and the claims could be

considered “one cause of action with two grounds of relief.”

17 James Wm. Moore et al., Moore’s Federal Practice §

110.05 (3d ed. 1997). The court must take all allegations in

the complaint as true, unless contradicted by the defendants’

affidavits. See SA Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure: Civil 2d § 1352 (1990 &

Supp. 1999). When an allegation is so challenged “[a] court

Appendix B-10

may examine facts outside the complaint to determine

whether venue is proper. The court must draw all reasonable

inferences and resolve all factual conflicts in favor or the

plaintiff.” Id. (citations omitted). If the defendants prevail

on their Rule 12 (b) (3) motion, the court has the power to

dismiss or transfer the case to any district in which it could

have been brought. See 28 U.S.C. § 1406(a); see also

Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.

1993) (holding that “[w]hether dismissal or transfer is

appropriate lies within the sound discretion of the district

court”).

Ill. Standing

Defendants argue that the complaint should be

dismissed for lack of standing because plaintiffs have not

alleged an injury in-fact, or alternatively, that any alleged

~ injury is not redressable by this action. (See, e.g., New York

State Thruway Auth.’s Br. At 4-5; New Jersey Defs. Br. At

5-13.)

An organization such as No More Tolls may have

standing to “seek judicial relief from injury to itself and to

vindicate whatever rights and immunities the association

itself may enjoy. Moreover, in attempting to secure relief

from injury to itself the association my assert the rights of its

members, at least so long as the challenged infractions

adversely affect its members’ associational ties.” Warth v.

Appendix B-1] .

Seldin, 422 U.S. 490, 511 95 S. Ct. 2197, 2211 (1975)

(citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

458-60, 78 S. Ct. 1163, 1169-171 (1958); Joint Anti-Fascist

Refugee Committee v. McGrath, 341 U.S. 123, 183-87, 71 S.

Ct. 624, 654-57 (1951) (Jackson J., concurring)). No More

Tolls, however, has not asserted injury to itself.

Even in the absence of injury to itself, an association

may have standing solely as the representative of its

members. See Warth, 422 U.S. at 511, 95 S. Ct. at 2211. To

have standing as the representative of its members, No More

Tolls must satisfy the constitutional requirement of a case or

controversy. See Sierra Club v. Morton, 405 U.S. 727, 92 S.

Ct. 1361 (1972). The only know member of No More Tolls

Is McKeown. Thus, plaintiffs must establish that: (1)

McKeown has suffered an “injury in fact: - “an invasion of a

legally protected interest which is concrete and

particularized” and “actual or imminent, not ‘conjectural’ or

hypothetical’”; (2) “there is a causal connection between the

injury and the conduct complained of — the injury has to be

‘fairly . . . trace[able] to the challenged action of the

defendant, and not ... thefe] result [of] the independent

action of some third party not before the court”; and (3) “it

must be ‘likely,’ as opposed to merely ‘speculative,’ that the

injury will be ‘redressed by a favorable decision’.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct.

2130, 2136 (1992); accord, e.g., Warth, 422 U.S. at 511. 95

S. Ct. at 2211-12; Sierra Club, 405 U.S. at 734-41, 92 S. Ct.

Appendix B-]2

at 1365-69.

The only personalized injuries alleged in the

amended complaint are that McKeown “has _ sustained

damages as a result of the operation of toll booths” (Am.

Compl. § 10) and that “[dJjefendant[s’] operation of toll

booths damage the business, property and health of the

[p]laintiff in violation of antitrust laws (Am. Comp. { 83).

Neither of those allegations is concrete or particularized, nor

do they constitute a “distinct and palpable injurv.”

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109,

99 S. Ct. 1601, 1608 (1979); Sierra Club v. SCM Corp., 747

F.2d 99, 103 (2d Cir. 1984). Additionally, there are no facts

alleged that_support an antitrust claim.

Moreover, plaintiffs’ allegations that the toll booths

have a negative impact on the environment are based on the

premise that toll booth increase motor vehicle toxic tailpipe

emissions. (Am. Compl. J 29-41) Even if the operation of

toll booths increases toxic tailpipe emissions, the emissions

are caused by the vehicles owned by millions of people not

parties to this action. If all toll booths were removed from

the mid-Atlantic states, as plaintiffs seek, millions of drivers

would still experience backups, traffic jams and delays that

increase tailpipe emissions. Accordingly, plaintiffs have not

established that the injury complained of is “fairly . . .

traceable to the challenged action of defendant [s], and not

... the result [of] the independent action of some third party

Appendix B-13

not before the court.” Lujan, 504 U.S. at 560, 112 S. Ct. at

2136. Nor have they demonstrated that the elimination of

toll booths would redress injuries to plaintiffs.

Further, even if plaintiffs could establish that they

have standing to sue, they failed to comply with the

mandatory notice requirement with respect to the Maryland

and New Jersey defendants.

The Delaware defendants also argue that the suit is

barred by the Eleventh Amendment (see Delaware Defs.’

bare-bones argument in their Br. at 5-6). That argument,

which is the only argument proffered by those defendants,

consists of two paragraphs that states, without any support,

that “None of the basic federal environmental laws on which

plaintiffs place crucial reliance and which include citizen

suits provisions are based on an appropriate Congressional

determination to create legislation to enforce the provisions

of the Fourteenth Amendment, as permitted by Section 5 of

that Amendment. Therefore, these claims are barred.”

(Delaware Defs.’ Br. at 5.) The Delaware defendants’ brief

is at best an invitation to research their theory and serve

generally as an advocate for them. This Court declines the

invitation. See, e.g., Ernest Haas Studio, Inc. v. Palm Press,

Inc., 164 F.3d 110, 111-12 (2d Cir. 1999)

IV. Notice

Appendix B-14

~The CAA, CWA and RCRA require that 60 days

prior to filing a citizen suit, a plaintiff must send notice of

the alleged violation to the defendant, the sate where the

violation occurred, and to the EPA. See 42 US.C. § 7604;

42 U.S.C. § 6972; 33 U.S.C. § 1365.

The Supreme Court has held that compliance with the

RCRA notice requirements, which are almost identical to the

CAA and CWA notice requirements, is mandatory. See

Hallstron v. Tillamook County, 493 U.S. 20, 26, 110 S. Ct.

304, 308-09 (1989) (“compliance with the 60-day notice

provision is a mandatory, not optional, condition precedent

to suit”).

The Maryland Transportation Authority and John D.

Porcari aver that plaintiffs did not notify them of their intent

to bring suit. (See Porcari Aff. J 6.) Plaintiffs have not

offered any evidence to the contrary. Accordingly,

plaintiffs’ CAA, CWA and RCRA claims against the

Maryland Transportation Authority and John D. Porcari are

dismissed.

Because plaintiffs did not serve the requisite notice

on the Maryland defendants, this Court need not determine

whether this Court has personal jurisdiction over them. (See

Maryland Defs.’ Br. at 3-5.)

The New Jersey defendants do not contest receipt of

Appendix B-15

plaintiffs’ notice of intent to sue. While the other defendants

except for the Metropolitan Transportation Authority and E.

Virgil Conway proffer similar arguments, one of them

included a copy of the notice. The New Jersey defendants

state in their brief that the same notice was sent to each

defendant, however, that statement is not admissible

evidence. Because the Court cannot evaluate the notices sent

to the remaining defendants, their motions to dismiss for

failure to comply with the notice requirements are denied.

They argue that the information contained in the notice did

not contain sufficient information.

The CAA requires that Notices to the Administrator,

States, and alleged violators regarding violation of an

emission standard or limitation or an order issued with

respect to an emission standard or limitation, shall include

sufficient information to permit the recipient to identify the

specific standard, limitation, or order which has alleged to be

in violation, the person or persons responsible for the alleged

violation, the location of the alleged violation, the date or

dates of such violation, and the full name and address of the

person giving the notice. 40 C.F.R. § 54.3 (b).

The CWA requires that Notice regarding an alleged

violation of an effluent standard or limitation or of an order

with respect thereto, shall include sufficient information to

permit the recipient to identify the specific standard,

limitation, or order alleged to have been violated, the activity

Appendix B-16

alleged to constitute a violation, the person or persons

responsible for the alleged violation, the location of the

alleged violation, the date or dates of such violation, and the

full name, address, and telephone number of the person

giving notice. (40 C.F.R. § 135.3(a).

Similarly, the RCRA requires that Notice regarding

an alleged violation of a permit, standard, regulation,

condition, requirement, or order which has become effective

under this Act shall include sufficient information to permit

the recipient to identify the specific permit, standard,

regulation, condition, requirement, or order which has

allegedly been violated, the activity alleged to constitute a

violation, the person or persons responsible for the alleged

violation, the date or dates of the violation, and the full

name, address, and telephone number of the person giving

notice. (40 C.F.R. § 254.3(a))

As the New Jersey defendants observe, plaintiffs’

notice of intent to sue failed to identify virtually every

requirement dictated by the CAA, CWA, and RCRA. (See

Cernich Aff. Ex. B: Notice of Intent to Sue.) Most

importantly, plaintiffs did not identify any emission

standards or limitations alleged to have been violated under

the CAA, nor did they identify any specific effluent

standards defendants allegedly violated under the CWA, or

specific permits, standards, regulations, conditions,

requirements or orders which defendants allegedly violated

Appendix B-17

under the RCRA. Accordingly, the New Jersey defendants’

motion to dismiss plaintiffs’ CAA, CWA and RCRA claims

for failure to comply with the mandatory notice provisions

pursuant to those statutes is granted. See Hudson

Riverkeeper Fund, Inc. v. Putnam Hosp. Ctr., Inc., 891 F.

Supp. 152, 154-55 (S.D.N.Y. 1995) (dismissing CWA claim

for failure to comply with content requirements specified in

40 C.F.R. § 135.3)

Even if plaintiffs had complied with the notice

requirements, venue is improper as to the Maryland, New

Jersey and Delaware defendants. Moreover, plaintiffs have

failed to state a claim upon which relief can be granted.

V. Venue

The CAA and CWA contain venue provisions that

permit a citizen action to be commenced only in the judicial

district in which the offending source of the standard or

limitation is located. See 42 U.S.C. § 7604(c)(1) (“Any

action respecting a violation by a stationary source of an

emission standard or limitation or an order respecting such

standard or limitation may be brought only in the judicial

district in which such source is located.”); 33 U.S.C. § 1365

(c) (1) (“Any action respecting a violation by a discharge

source of an effluent standard or limitation or an order

respecting such standard or limitation may be brought under

this section only in the judicial district in which such source

Appendix B-18

is located.”) The RCRA venue provision limits the filing of

a citizen suit to that jurisdiction where the alleged violation

occurred. See 42 U.S.C. § 6972 (a) (“Any action [against

any person and any other governmental instrumentality or

agency who is alleged to be in violation of any permit,

standard, regulation, condition, requirement, prohibition, or

order which has become effective pursuant to this chapter]

shall be brought in the district court for the district in which

the alleged violation occurred or the alleged endangerment

may occur.”)

Plaintiffs allege that the New Jersey defendants

operate toll booths in New Jersey (Am. Compl. J J 17-22),

that the Maryland defendants operate toll booths in Maryland

(Am. Compl. J 4 23-24), and that the Delaware defendants

operate toll booths in Delaware (Am. Compl. 4 § 25-28).

Plaintiffs do not allege that those defendants Operate any toll

booths in New York, or that any alleged violations or

endangerment arising from any pollutants caused by those

defendants occurred or may occur in New York. The Court

declines to transfer those claims because plaintiffs have

failed to state a claim under the CAA, CWA and RCRA (see

infra sections VI — VIII), and grants the motions by the New

Jersey, Maryland and Delaware defendants to dismiss the

complaint for improper venue.

VI. = Clean Air Act Claims

Appendix B-19

The CAA was implemented to prevent and control air

pollution by providing “[f]ederal financial assistance and

leadership . . . for the development of cooperative Federal,

State, regional, and local programs to prevent and control air

pollution.” 42 U.S.C. § 7401 (a) (3), (4). The CAA

amendments of 1970 and 1977 required the EPA to

promulgate national ambient air quality standards

(“NAAQS”) for various air pollutants. See 42 U.S.C. §

7409; Wilder v. Thomas, 854 F2d 605, 609 (2d Cir. 1988).

Section 7410 (a) (1) requires that each state adopt an

implementation plant (“SIP”) that provides for the

“implementation, maintenance, and enforcement of national

primary and secondary ambient air quality standards.” See

Wilder, 854 F.2d at 609, Concerned Citizens of Bridesburg

v. EPA, 836 F.2d 777, 780-81 (3d Cir. 1987).

The citizen suit provision of the CAA creates “a

limited private right of action to enforce the Act’s

provisions.” Specifically, it provides that [A]ny person may

commence a civil action on his own behalf — (1) against any

person .. . who is alleged to be in violation of (A) an

emission standard or limitation under this chapter... 42

U.S.C. § 7604 (a) (1) (1995). The Act defines an “emission

standard or limitation” as any condition or requirement under

an applicable implementation plan relating to transportation

control measures, air quality maintenance plans, vehicle

inspection and maintenance programs or vapor recovery

Appendix B-20

requirements .. which is in effect under this chapter... or

under an applicable implementation plan. 42 U.S.C. § 7604

(f) (3) (1995). “In order to avoid either overburdening the

courts or unduly interfering with implementation of the act . .

. [C]ongress carefully circumscribed the scope of the [citizen

suit] provision by authorizing citizens to bring suit only for

violations of specific provisions of the act or specific

provisions of an applicable implementation plan.” Wilder,

854 F.2d at 613. Thus, to state a claim under the citizen suit

provision a plaintiff must allege “a violation of ‘a specific

strategy or commitment in the SIP and describe, with some

particularity, the respects in which compliance with the

provision is deficient.” Coalition Against Columbus Ctr. V.

City of New York, 967 F.2d 764, 769 (2d Cir. 1992).

Accord, e.g., Wilder, 854 F.2d at 610; Council of Commuter

Orgs. V. Gorsuch, 683 F.2d 648, 670 (2d Cir. 1982).

Plaintiffs claim that defendants have violated the

CAA by slowing “vehicular movement which unnecessarily

increases toxic tailpipe emissions.” However, the complaint

does not identify any violations of specific emissions

standards, or limitations under the CAA or legally

enforceable strategies or commitments that the defendants

made under a current SIP.

Plaintiffs also claim that toll booths are major sources

of hazardous air pollutants under 42 U.S.C. § § 7411, 7412.

The CAA defines a “major source” as a “stationary source”

Appendix 5-21

“that emits or has the potential to emit considering controls

in the aggregate 10 tons per year or more of any hazardous

air pollutant or 25 tons per year or more of any combination

of hazardous air pollutants... .” 42 U.S.C. § 7412 (a)(1). A

stationary source is defined as “any building, structure,

facility, or installation which emits or may emit any air

pollutant,” 42 U.S.C. § 7411 (a)(3).

Plaintiffs do not allege that toll booths emit or have

the potential to emit air pollutants. See, e.g., Sierra Club v.

Larson, 2 F.3d 462, 466-69 (1* Cir. 1993) (ventilation

buildings do not generate their own emissions and thus are

not stationary sources). They claim that motor vehicles emit

the air pollutants. Motor vehicles, however, are specifically

excluded from the definition of stationary source. See 42 ©

U.S.C. § 7602 (z) (‘The term ‘stationary source’ means

generally any source of an air pollutant except those

emissions resulting directly from an internal combustion

engine for transportation purposes... .”).

In addition, plaintiffs claim that defendants violate

section 7408. (Am. Compl. J § 115, 117.) Plaintiffs cannot

state a claim under section 7408 because it imposes

obligations on the EPA Administrator, who has not been

named as a defendant in this action, and does not adopt any

particular emission standard or limitation or refer to a

commitment defendants have made under a current SIP.

Appendix B-22

Accordingly, defendants’ motions to dismiss

plaintiffs’ CAA claims for failure to state a claim are

granted.

VII. Clean Water Act Claims

Citizen suits under the CWA are permitted only to

enforce “an effluent standard or limitation” or “an order

issued by the [EPA] Administrator or a State with respect to

such a standard or limitation.” 33 USC § 1365 (a).

Effluent standards and limitations are administratively

established regulations of particular types of dischargers on

the amounts of pollutants that my be discharged. See 33

U.S.C. § 1362 (11); United States v. Hooker Chems. &

Plastics Corp., 749 F.2d 968, 979 (2d Cir. 1984).

Plaintiffs assert that “[toll booth operators violate ‘an

effluent standard or limitation’ under 33 U.S.C. [§] 1365

(a)(1) (A) because of illegal and unpermitted discharges of

leachate from toll booth locations,” that “[d]efendants violate

CWA Section 311 by continuing to cause the dimunition of

water quality of the surface and subterranean waters by

release of pollutants into the surface waters and ground

waters under and adjacent to toll booth areas,” and that

defendants fail to use “the best practicable control

technology available to achieve their road use fee collection

objectives.” Plaintiffs’ sweeping allegations do not charge

defendants with violating any effluent standards or

Appendix B-23

limitations. See, e.g.. Hamker v. Diamond Shamrock Chem.

Co., 756 F.2d 392, 394 (5" Cir. 1985) (“Because the

complaint . . . does not allege that [defendant] is ‘in

violation’ of an effluent standard, limitation or order,....

[plaintiffs] fail to state allegations sufficient to support

jurisdiction in this case.”); Hooker Chems. & Plastics, 749

F.2d at 979. Plaintiffs’ reference to the “best practicable

control technology” concerns a section of the CWA that does

not establish any specific effluent limitations and is directed

to the EPA, not to defendants. See 33 U.S.C. § 1311 (b) (1)

(A).

Plaintiffs also claim that “toll booths are point

sources as defined by the EPA and violate CWA Section

301.” The CWA defines “point source” as: any discernible,

confined and discrete conveyance, including but not limited

to any pipe, ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft, from which

pollutants are or may be discharged. This term does not

include agricultural stormwater discharges and return flows

from irrigated agriculture. 33 U S.C. § 1362 (14). The

Second has noted that “[ajithough by its terms the definition

of ‘point source’ is nonexclusive, the words used to define

the term and the examples given (pipe, ditch, channel,

tunnel, conduit, well, discrete fissure, etc.) evoke images of

physical structures and instrumentalities that systematically

act as a means of conveying pollutants from an industrial

Appendix B-24

source to navigable waterways.” United States v. Plaza

Health Labs., Inc., 3 F. 3d 643, 646 (2d Cir. 1993) ; cf.,

Hudson Riverkeeper Fund, Inc. v. Harbor at Hastings

Assocs., 917 F. Supp. 251, 257 (S.D.N.Y. 1996) (building

through which rainwater enters and passes into a river as

runoff is not a “point source” under the CWA). Courts have

held that “the touchstone for finding a point source is the

ability to identify a discrete facility from which pollutants

have escaped.” Washington Wilderness Coalition v. Hecla

Mining Co., 870 F. Supp. 983, 988 (E.D. Wash. 1994)

(citing cases). Non-point sources include uncollected runoff

water from, for example, oil and gasoline on a highway, or

Stormwater runoff from highways, construction sites or

industrial parks, which are difficult to ascribe to a single

polluter. United States v. Earth Sciences, Inc., 599 F.2d 368,

373-74 (10" Cir. 1979); Friends of Santa Fe County v. LAC

Minerals, Inc., 892 F. Supp. 1333, 1358-59 (D.N.M. 1995);

Washington Wilderness Coalition, 870 F. Supp at 988.

Here, motor vehicles are the sources of the pollutants

complained of, i.e. toxic tailpipe emissions on toll roads and

not toll booths. Further, the sources are not capable of being

attributed to a discernible polluter. Moreover, the “leachate”

that plaintiffs claim is released from toll booths, including

carbon monoxide, nitrogen oxide and sulfur, are air

emissions and not water pollutants covered by the CWA.

See 42 U.S.C. § 1362 (6) (definition of “pollutant” under the

CWA).

Appendix B-25

~

Plaintiffs last claim for relief under the CWA alleges

that defendants operate without the requisite permits in

violation of 33 U.S.C. § 1344. (Am. Compl. ¥] 46, 67, 69.)

Section 1344 prohibits the discharge of dredged or fill

material into navigable waters. Plaintiffs have not identified

any navigable water, nor have they alleged that defendants

have discharged dredge or fill materials into navigable

waters.

For all the above stated reasons, defendants’ motions

to dismiss plaintiffs’ CWA claims are granted.

VIII. Resources Conservation and Recovery Act Claims

The RCRA is “a comprehensive environmental

statute that governs the treatment, storage, and disposal of

solid and hazardous waste.” Meghrig v. KFC Western, Inc.,

516 U.S. 479, 483, 116 S.Ct. 1251, 1254 (1996); see also

Prisco v. A&D Carting Corp., 168 F.3d 593, 608 (2d Cir.

1999). The purpose of the RCRA “is to reduce the

generation of hazardous waste and to ensure the proper

treatment, storage, and disposal of that waste which is

nonetheless generated, ‘so as to minimize the present and

future threat to human health and the environment.’” Id.

(quotations omitted); see also 42 U.S.C. § 6902 (b)). In

furtherance of that goal, RCRA contains a_ provision

allowing citizen lawsuits for injunctive relief under either 42

U.S.C. § 6972 (a) (1) (A) or (a) (1) (b). Prisco, 168 F.3d at

Appendix B-26

608; also 42 U.S.C. § 6972. Plaintiffs’ claim for relief

under 42 U.S.C. § 6973 (Am Compl. § 77) is therefore-

dismiss because that section is not subject to citizen suits.

To establish a violation of section 6972 (a) (1) (A), a

plaintiff must establish that the defendant is currently in

violation of a “permit, standard, regulation, condition,

requirement, prohibition, or order which has become

effective pursuant to this chapter.” 42 U.S.C. § 6972 (a) (1)

(A); ABB Indus. Sys., Inc. v. Prime Tech., Inc, 120 F.3d

351, 359 (2d Cir. 1997). In order to establish rights under 42

U.S.C. § 6972 (a) (1) (B) plaintiffs must show that (1) the

defendant was or is a generator or transporter of solid or

hazardous waste or owner or operator of a solid or hazardous

waste treatment, storage or disposal facility; (2) the

defendant has contributed or is contributing to the handling,

storage, treatment, transportation, or disposal of solid or

hazardous waste, as defined by RCRA, 42 U.S.C. §§ 6903

(3), (27); and (3) that the solid or hazardous waste in

question may pose an imminent and _ substantial

endangerment to health or the environment 42 U.S.C. § 6972

(a) (1) (B); Prisco, 168 F.3d at 608; ABB Indus. Sys., 120

- F.3d at 359.

Plaintiffs have not alleged that defendants are

violating a specific “permit, standard, regulation, condition,

requirement, prohibition, or order” under the RCRA.

Plaintiffs’ conclusory allegation that defendants violated

Appendix B-27

Subchapter II] of RCRA (Am Compl. § 75) does not allege a

violation of any specific requirement in that subchapter. See

ABB Indus. Sys. 120 F. 3d at 359. Plaintiffs also do not

allege any facts from which it could be inferred that toll

booth operators created solid or hazardous waste, as defined

by the RCRA, disposed of it, transported it, or otherwise

handled it. See Delaney v. Town of Carmel, 55 F. Supp. 2d

237, 262 (S.D.N.Y. 1999) (dismissing RCRA claims where

plaintiffs failed to demonstrate that defendant created,

disposed of, transported or handled solid or hazardous

waste). Moreover, none of the substances mentioned in the

complaint are listed as hazardous waste under EPA

regulations. See 40 C.F.R. § 79: “[dJefendants violate the

prohibition against the operation of an open dump”). See 42

U.S.C. § 6945 (a).

Accordingly, defendants’ motions to _ dismiss

plaintiffs’ RCRA claims are granted.

IX. Federal Common Law Claims

Plaintiffs assert a multitude of negligence, nuisance

and civil rights claims entitled “federal common law claims.”

(Am. Compl. J 82-105.) Since there is no federal common

law, those claims will be treated as alleging violations of

federal statutes governing those subject matters.

A. Nuisance Claims

Appendix B-28

Plaintiffs assert two “nuisance” claims. The first

claim alleges that defendants’ Operation of toll booths

“damages the business, property and health of the Plaintiff

and citizens of the United States and violate[s] 15 U.S.C. [8]

15.” (Am Compl. ¥ 83.) 15 U.S.C. § 15 address recovery

for injuries to business or property for antitrust violations.

Plaintiffs have not alleged any facts relevant to an antitrust

claim. Defendants’ motion to dismiss plaintiffs’ first

“nuisance” claim is therefore granted.

Plaintiffs’ also allege that “defendants damage the

environment” in violation of 42 U.S.C. § 7408, 33 U.S.C. §

1317, 33 U.S.C. § 1312, 42 U.S.C. § 7619, 42 U.S.C. § 7525,

42 U.S.C. § 7521, 42 U.S.C. § 7430, 42 USC. § 7412 and

42 US.C. § 7409. (Am. Compl. 7 85.) However, those

statutes are only enforceable by the EPA Administrator and

are not subject to citizen suits. Defendants’ motion to

dismiss plaintiffs’ second “nuisance” claim is therefore

granted.

B. Negligence Claims

Plaintiffs assert two “negligence” claims. First,

plaintiffs claim that defendants “negligently caus[e] . . .

hazardous substances to be released into the ambient air” in

violation of 42 U.S.C. §§ 7521, 9613. (Am. Compl. § 91.)

42 U.S.C. § 7521 grants the EPA Administrator authority to

promulgate regulations related to emissions standards for

Appendix B-29

new motor vehicles or new motor vehicle engines. 42

U.S.C. § 9613 establishes when an interested party may seek

review of a regulation promulgated under that chapter.

Neither stature is relevant to plaintiffs’ ciaims.

Plaintiffs also allege that defendants negligently

damage the waters of the United States by operating toll

booths in violation of 33 U.S.C. § 1323. (Am. Comp. § 91.)

That stature is part of the Federal Water Pollution Control

Act and prescribes regulations for departments, agencies and

instrumentalities of the executive, legislative and judicial

branches of the federal government. None of the defendants

are members of any branch of the federal government.

Accordingly, defendants’ motions to dismiss

plaintiffs’ “negligence” claims are granted.

Cc. Civil Rights Claims

Plaintiffs allege that defendants violate 42 U.S.C. §

1983 by “forcing toll payers to participate in the

defendants[‘] violations of state and Federal laws and by

unnecessarily and unlawfully impeding the movement of

citizens thus causing toll payers to unnecessarily pollute the

environment.” (Am. Comp. § 87.) Even if plaintiffs’ section

1983 claim was not preempted by the CAA, CWA and

RCRA provisions limiting the scope of citizen suits, see

i x Coun Ww _v. National

Appendix B-30

Clammers Ass’n, 453 U.S. 1, 20-21, 101 S. Ct. 2615, 2626-

27 (1981) (finding the remedial devices provided in the

Federal Water Pollution Control Act and Marine Protection,

Research, and Sanctuaries Act sufficiently comprehensive,

particularly since they provide for citizen suits, and therefore

that Congress intended to preclude the remedy of suits under

section 1983), plaintiffs have not alleged that defendants

have deprived them of any particular rights, privileges or

immunities secured by the Constitution or federal law.

Accordingly, defendants’ motion to dismiss plaintiffs’

section 1983 claim is granted.

» a Occupational Safety and Health Act Claims

Unlike the CAA, CWA and RCRA, the Occupational

Safety and Health Act (“OSHA”) does not contain a citizen

suit provision. Rather, OSHA authorizes the Secretary of

Labor to promulgate standards for workplace safety. See 29

U.S.C. §§ 655, 657-59; 29 C.F.R. §§ 1900-2400. The only

provision in OSHA that permits a private citizen to bring a

suit in federal court to enforce a standard is section 655(f),

which allows [a]ny person who may be adversely affected by

a standard issued under this section . . . . at any time prior to

the sixtieth day after such standard is promulgated {to] file a

petition challenging the validity of such standard with the

United States court of appeals for the circuit wherein such

person resides or has his principal place of business, for a

judicial review of such standard. (29 U.S.C. § 655 (f).

Appendix B-3]

The complaint does not allege that McKeown or any

unnamed members of No More Tolls are employees of

defendants who are adversely affected by defendants’

violations of a specific OSHA standard, or that they are

otherwise within the zone of interest to be protected by

OSHA. Moreover, this action was filed in the district court

and not the court of appeals. Because plaintiffs do not have

standing to bring an OSHA action, defendants’ motions to

dismiss plaintiffs’ OSHA claims are granted.

XI. Federal Aid Highway Act

Plaintiffs claim that defendants violate 23 U.S.C. §

1109 by “interrupting the normal flow of vehicular

movement by dangerously widening and narrowing the area

in which vehicles travel.” (Am Comp. { 113.) There is no

statute codified as 23 § 1109. Assuming that plaintiffs

intended to cite section 109 of Title 23, plaintiffs still fail to

state a claim. Section 109 prohibits the Secretary of

Transportation from approving highway projects that do not

“adequately meet existing and future traffic needs and

conditions in a manner conducive to safety... . “

Thus, any claim to compel compliance under section

109 must be brought against the Secretary of Transportation.

See Road Review League v. Boyd, 270 F. Supp. 650, 661

(S.D.N.Y. 1967). Since defendants are not a proper party to

such a suit, their motions to dismiss plaintiffs’ Federal Aid

Highway Act claim are granted.

Appendix B-32

XII. Pendent State law Claims

Plaintiff has alleged numerous claims under various

state environmental laws. While the Court may exercise

supplemental jurisdiction over the state claims pursuant to 28

U.S.C. § 1367, the Court declines to exercise such discretion

because the Court has dismissed plaintiffs’ federal claims

early in this litigation. See Travelers Ins. Co. v. Keeling,

996 F.2d 1485, 1490 (2d Cir. 1993) (addressing the

discretion to exercise jurisdiction over state law claims); see

also United Mine Workers of Am. V. Gibbs, 383 U.S. 715,

726, 86 S. Ct. 1130, 1139 (1966). Accordingly, defendants’

motions to dismiss plaintiffs’ state law claims are granted.

Conclusion

For the reasons set forth above, defendants’ motion to

strike the Environmental Protection Agency and Carol

Browner are granted. Defendants’ motions to dismiss the

complaint with prejudice are also granted. The Clerk is

directed to close this case and to enter judgment in favor of

defendants.

Dated: March 29, 2001 SO ORDERED:

New York, N.Y.

s/

WILLIAM H. PAULEY III

-U.S.D.J.

Appendix B-33