Reviewed by a non-lawyer interested in the Game
Complaint may be view at.
http://www.loudounnats.org/pdf/Sludge_Complaint_Revised_11-13-06_Secure.pdf
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
v. )
)
Synagro is an out of state Corporation and Sussex Surry LLC is an instate Limited liability company
and debts of the LLC. it can be difficult to determine who actually has the authority to enter into a contract on
the LLC's behalf.
sewage.
1) What are Biosolids? -- They are nutrient-rich organic materials resulting from the treatment of domestic
sewage in a treatment facility. When treated and processed, these residuals can be recycled and applied as
fertilizer to improve and maintain productive soils and stimulate plant growth. http://www.epa.
gov/OWM/mtb/biosolids/genqa.htm
EPA does not define Biosolds in 503.
503.9(aa) Treatment works is either a federally owned, publicly owned, or privately owned device or system used
to treat (including recycle and reclaim) either domestic sewage or a combination of domestic sewage and
industrial waste of a liquid nature.
503.9(g) Domestic sewage is waste and wastewater from humans or household operations that is discharged to
or otherwise enters a treatment works.
503.9(w) Sewage sludge is solid, semi-solid, or liquid residue generated during the treatment of domestic sewage
in a treatment works.
Under RCRA (26A) The term ``sludge'' means any solid, semisolid or liquid waste generated from a municipal,
commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control
facility or any other such waste having similar characteristics and effects.
CWA "(1) Purpose - This section was not intended to be [the] primary source of regulation of sludge but was
intended as [a] cautionary measure to provide additional protection against dangers to navigable waters caused
by disposal methods unregulated by section 1311 of this title, i.e. careless land disposal and deep ocean
dumping of sludge from vessels. ---" (Title 33, part 1345, note 1)
This statement is a little confusing since Synagro is disposing of sludge under Virgina law and permits.
It appears that Synagro is claiming citizenship for a corporation and the state court has no jurisdiction because
it has an address in another state.
Company is a type of hybrid business structure that is designed to provide the limited liability features of a
corporation and the tax efficiencies and operational flexibility of a partnership. Unlike a regular corporation,
however, a limited liability company with one member may be treated as a disregarded entity for tax purposes.
Membership interests of LLCs can be assigned, and the economic benefits of those interests can be separated
and assigned, providing the assignee with the economic benefits of distributions of profits/losses (like a
partnership), without transferring the title to the membership interest (i.e., See VA and Delaware LLC Acts).
Synagro appears to be saying that since no member of Sussex Surry was named it was a fraudulent joinder,
especially if Synagro is the assignee. Sharp lawyers!
It appears that Synagro is claiming instate companies are exempt from common laws of negligence, nuisance or
trespass if the dumping is done by an out of state corporation.
Neither the Constitution, nor any federal law authorizes disposal of sludge outside of a Sanitary Landfill.
CWA (7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and
implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of
both point and nonpoint sources of pollution. = [careless land disposal on farms, lawns, parks, schools]
It appears there is no regulation under the Clean Water Act regarding the application of biosolids. 503 does not
mention bioslids, nor does it claim to comply with the Clean Water Act or any other law-- In fact,
§ 503.4 Relationship to other regulations.
Disposal of sewage sludge in a municipal solid waste landfill unit, as defined in 40 CFR 258.2, that complies with
the requirements in 40 CFR part 258 constitutes compliance with section 405(d) of the CWA.
Only the Solid Waste regulation mentions federal law.
§ 258.3 Consideration of other Federal laws.
The owner or operator of a municipal solid waste landfill unit must comply with any other applicable Federal
rules, laws, regulations, or other requirements.
Virginia laws are based on a national program to remove sludge, a solid waste from landfills, and dispose of it as
a fertilizer, there is a direct conflict with federal laws.
As noted above neither federal law or enforceable regulation acknowledges or defines biosolids. Furthermore,
by 503 definition, no major municipal wastewater treatment plant produces biosolids (ony treated sewage from
households) as defined in EPA's Biosolids question and answer sheet.
The biosolids program is not based on the largest scientific risk assessment ever undertaken by EPA as EPA
states in A Guide to the Biosolids Risk Assessments for the EPA Part 503 Rule (1995) no risk assessment was
done for disease causing microorganisms (pathogens), no risk assessment was done for metal pollutants as they
were considered non carcinogens for the pathways evaluated, and no risk assessment was done for organics, (P.
110), even though EPA listed 21 organic and inorganic chemicals that were known carcinogens in the 1989
proposed 503 rule (FR 54,p. 5777)
No federal law or regulation has ever claimed sludge is safe based on the nine listed pollutant in 503.13 and two
billion fecal coliform per kilogram of sludge. In 503 EPA referred to humans under the scientific term organisms.
The one instance of science, but the pollutant will dos serious damage to you.
503.9(t) Pollutant is an organic substance, an inorganic substance, a combination of organic and inorganic
substances, or a pathogenic organism that, after discharge and upon exposure, ingestion, inhalation, or
assimilation into an organism either directly from the environment or indirectly by ingestion through the food
chain, could, on the basis of information available to the Administrator of EPA, cause death, disease, behavioral
abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunction in reproduction), or
physical deformations in either organisms or offspring of the organisms.
Complaint may be view at.
http://www.loudounnats.org/pdf/Sludge_Complaint_Revised_11-13-06_Secure.pdf
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
- -----------------------------------------------------------------
SANDRA J.WYATT, )
- ROBERT L. WYATT, )
EVA S. GREGORY, )
LEVERETTE B. GREGORY, JR., and )
TERESA E. GREGORY, )
Plaintiffs, )
v. )
)
- SUSSEX SURRY, LLC, and )
SYNAGRO CENTRAL, INC., )
Defendants. )
---------------------------------------------------------------------
DEFENDANT SYNAGRO'S NOTICE OF REMOVAL
- The undersigned Defendant Synagro Central, Inc. (Synagro), pursuant to 28 U.S.C. §§
1441 and 1446, files this Notice of Removal of Sandra L. Wyatt, et al., v. Sussex Surry, LLC, et
al., case no. CL06000069-00, from the Circuit Court of the County of Surry, Virginia to
the United States District Court for the Eastern District of Virginia, Richmond Division. Removal
from state to federal court is necessary based on fraudulent joinder of an instate defendant,
complete federal preemption, and a substantial federal question. In support of removal, Synagro
states as follows:
1. On or about November 22,2006, the Plaintiffs Sandra L. Wyatt et al, filed a
Complaint in the Circuit Court for the County of Surry, Virginia, case no. CL06000069-00,
naming two Defendants: Synagro and Sussex Surry LLC (Sussex Surry).
Synagro is an out of state Corporation and Sussex Surry LLC is an instate Limited liability company
2. Defendant Synagro was served on November 22,2006.
3. As of the date of this Notice of Removal, Defendant Sussex Surry has not been
served, and its status does not affect this Notice of Removal. See McKinney v. Board of Trustees
of Maryland Community College, 955 F.2d 924 (4th Cir. 1992). As explained below, Defendant
Sussex Surry is fraudulently joined.
and debts of the LLC. it can be difficult to determine who actually has the authority to enter into a contract on
the LLC's behalf.
4. Plaintiffs' Complaint seeks injunctive relief as well as compensatory and punitive
damages for alleged negligence, private nuisance, and trespass, all stemming from Synagro's
land application of biosolids (treated sewage sludge) as a fertilizer and soil conditioner, pursuant
to federal regulations and state permits, to forest land in Surry County that happens to be owned
by Sussex Surry. See Complaint^ 102-125.
sewage.
1) What are Biosolids? -- They are nutrient-rich organic materials resulting from the treatment of domestic
sewage in a treatment facility. When treated and processed, these residuals can be recycled and applied as
fertilizer to improve and maintain productive soils and stimulate plant growth. http://www.epa.
gov/OWM/mtb/biosolids/genqa.htm
EPA does not define Biosolds in 503.
503.9(aa) Treatment works is either a federally owned, publicly owned, or privately owned device or system used
to treat (including recycle and reclaim) either domestic sewage or a combination of domestic sewage and
industrial waste of a liquid nature.
503.9(g) Domestic sewage is waste and wastewater from humans or household operations that is discharged to
or otherwise enters a treatment works.
503.9(w) Sewage sludge is solid, semi-solid, or liquid residue generated during the treatment of domestic sewage
in a treatment works.
Under RCRA (26A) The term ``sludge'' means any solid, semisolid or liquid waste generated from a municipal,
commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control
facility or any other such waste having similar characteristics and effects.
CWA "(1) Purpose - This section was not intended to be [the] primary source of regulation of sludge but was
intended as [a] cautionary measure to provide additional protection against dangers to navigable waters caused
by disposal methods unregulated by section 1311 of this title, i.e. careless land disposal and deep ocean
dumping of sludge from vessels. ---" (Title 33, part 1345, note 1)
5. A defendant may remove to the appropriate federal district court "any civil action
brought in a State court of which the district courts of the United States have original
jurisdiction." City of Chicago v. International College of Surgeons, 522 U.S. 156,163 (1997)
(quoting 28 U.S.C. § 1441(a)).
This statement is a little confusing since Synagro is disposing of sludge under Virgina law and permits.
6. This Court has original jurisdiction pursuant to 28 U.S.C. § 1332(a) because
complete diversity of citizenship exists between Plaintiffs, residents of Virginia, and the only
proper Defendant, Synagro, which is a Delaware Corporation with its principal place of business
in Baltimore, Maryland. See Complaint ffif 5-10 and 13. In addition, the amount in controversy
exceeds $75,000. See Complaint ff 126-130.
It appears that Synagro is claiming citizenship for a corporation and the state court has no jurisdiction because
it has an address in another state.
7. Defendant Sussex Surry is a Virginia corporation that owns the land on which
Synagro applied biosolids. Sussex Surry did not participate in or control the actions alleged in
the Complaint and can not be liable under the causes of action pled by Plaintiffs.
Company is a type of hybrid business structure that is designed to provide the limited liability features of a
corporation and the tax efficiencies and operational flexibility of a partnership. Unlike a regular corporation,
however, a limited liability company with one member may be treated as a disregarded entity for tax purposes.
Membership interests of LLCs can be assigned, and the economic benefits of those interests can be separated
and assigned, providing the assignee with the economic benefits of distributions of profits/losses (like a
partnership), without transferring the title to the membership interest (i.e., See VA and Delaware LLC Acts).
- 8. The Complaint constitutes a fraudulent joinder of instate Defendant Sussex Surry,
a Virginia corporation, in order to defeat diversity jurisdiction.
Synagro appears to be saying that since no member of Sussex Surry was named it was a fraudulent joinder,
especially if Synagro is the assignee. Sharp lawyers!
9. Plaintiffs do not have a valid cause of action against the instate Defendant, Sussex
Surry, under any of Plaintiffs' three theories of recovery.
It appears that Synagro is claiming instate companies are exempt from common laws of negligence, nuisance or
trespass if the dumping is done by an out of state corporation.
10. This Court also has original jurisdiction over this case because it "aris[es] under
the Constitution, laws, or treaties of the United States." City of Chicago, 522 U.S. at 163
(quoting 28 U.S.C. §1331).
Neither the Constitution, nor any federal law authorizes disposal of sludge outside of a Sanitary Landfill.
- 11. Plaintiffs' Complaint is preempted under the Supremacy Clause of the United States
Constitution by the federal Clean Water Act and regulations thereunder. The Clean Water Act
and its regulations regarding the land application of biosolids constitute a comprehensive
regulatory program to encourage this valuable recycling activity. See 40 C.F.R. Part 503. The
United States Environmental Protection Agency (EPA) researched and promulgated the Part 503
regulations to provide detailed mandates for the land application of biosolids, including the
chemical and biological components of biosolids, operational controls, and record keeping, all of
which will be at issue in this case. The Clean Water Act allows for state law to complement and
strengthen the federal biosolids program, but it does not allow for, and preempts, state tort claims
that conflict with and would eviscerate and defeat a national program by which thousands of
communities recycle biosolids to the land.
CWA (7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and
implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of
both point and nonpoint sources of pollution. = [careless land disposal on farms, lawns, parks, schools]
It appears there is no regulation under the Clean Water Act regarding the application of biosolids. 503 does not
mention bioslids, nor does it claim to comply with the Clean Water Act or any other law-- In fact,
§ 503.4 Relationship to other regulations.
Disposal of sewage sludge in a municipal solid waste landfill unit, as defined in 40 CFR 258.2, that complies with
the requirements in 40 CFR part 258 constitutes compliance with section 405(d) of the CWA.
Only the Solid Waste regulation mentions federal law.
§ 258.3 Consideration of other Federal laws.
The owner or operator of a municipal solid waste landfill unit must comply with any other applicable Federal
rules, laws, regulations, or other requirements.
Virginia laws are based on a national program to remove sludge, a solid waste from landfills, and dispose of it as
a fertilizer, there is a direct conflict with federal laws.
- 12. Moreover, this case should be removed to this Court because Plaintiffs' right to
relief necessarily depends on resolution of substantial questions of federal law. See generally
Franchise Tax Ed. of the State of Calif, v. Construction Laborers Vacation Trust for So. Calif,
463 U.S. 1, 13 (1983); Pinney v. Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005). Pursuant to the
Clean Water Act, Congress and the EPA have encouraged and closely regulated the land
application of biosolids in order to recycle valuable nutrients in biosolids and avoid wasteful
disposal of growing volumes of sewage sludge. See, e.g., 40 C.F.R. Part 503; EPA, Biosolids
Page 3
Recycling: Beneficial Technology for a Better Environment (1994). The federal biosolids
program codified in the Part 503 regulations is based on one of the largest scientific risk
assessments ever undertaken by EPA. EPA, A Guide to the Biosolids Risk Assessments for the
EPA Part 503 Rule (1995). Plaintiffs' Complaint challenges the decisions and regulatory actions
of EPA in choosing how to regulate land application of biosolids, and adjudication of Plaintiffs'
claims will likely require judicial evaluation and decisions regarding the interpretation of EPA
biosolids regulations and EPA fact finding regarding the safety of land application.
As noted above neither federal law or enforceable regulation acknowledges or defines biosolids. Furthermore,
by 503 definition, no major municipal wastewater treatment plant produces biosolids (ony treated sewage from
households) as defined in EPA's Biosolids question and answer sheet.
The biosolids program is not based on the largest scientific risk assessment ever undertaken by EPA as EPA
states in A Guide to the Biosolids Risk Assessments for the EPA Part 503 Rule (1995) no risk assessment was
done for disease causing microorganisms (pathogens), no risk assessment was done for metal pollutants as they
were considered non carcinogens for the pathways evaluated, and no risk assessment was done for organics, (P.
110), even though EPA listed 21 organic and inorganic chemicals that were known carcinogens in the 1989
proposed 503 rule (FR 54,p. 5777)
No federal law or regulation has ever claimed sludge is safe based on the nine listed pollutant in 503.13 and two
billion fecal coliform per kilogram of sludge. In 503 EPA referred to humans under the scientific term organisms.
The one instance of science, but the pollutant will dos serious damage to you.
503.9(t) Pollutant is an organic substance, an inorganic substance, a combination of organic and inorganic
substances, or a pathogenic organism that, after discharge and upon exposure, ingestion, inhalation, or
assimilation into an organism either directly from the environment or indirectly by ingestion through the food
chain, could, on the basis of information available to the Administrator of EPA, cause death, disease, behavioral
abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunction in reproduction), or
physical deformations in either organisms or offspring of the organisms.
13. This Notice of Removal is filed in the District Court of the United States for the
district in which this suit was filed ~ the Eastern District of Virginia.
14. This Notice of Removal is filed within the time provided by 28 U.S.C. § 1446(b).
15. Pursuant to 28 U.S.C. § 1446(a), true and legible copies of all process, pleadings,
papers and orders which have been received by Synagro in this matter, consisting of a Bill of
Complaint (Tab A) and Synagro's Demurrer (Tab B), are attached hereto.
16. Pursuant to 28 U.S.C. § 1446(d), Synagro is filing a copy of this Notice of
Removal with the Clerk of the Circuit Court for the County of Surry, Virginia, where the action
was originally filed. Synagro has also served Plaintiffs' counsel with this Notice of Removal.
WHEREFORE, Synagro hereby removes to this Court the action captioned as Sandra L.
Wyatt, et al, v. Sussex Surry, LLC, etal., case no. CL06000069-00, from the Circuit Court of the
County of Surry, Virginia to the United States District Court for the Eastern District of Virginia
Page 4
Removed from:
Circuit Court of
Surry County, Virginia
Case No. CL06000069-00
Circuit Court of
Surry County, Virginia
Case No. CL06000069-00