Lower Susquehanna Riverkeeper Association v. Republic Services of Pennsylvania LLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LOWER SUSQUEHANNA
RIVERKEEPER ASSOCIATION,
Plaintiff,
v.
REPUBLIC SERVICES OF
PENNSYLVANIA LLC,
Defendant.
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Civil No. 1:23-CV-00044
Judge Jennifer P. Wilson
MEMORANDUM
This Clean Water Act citizen suit is proceeding to a bench trial scheduled to
begin on February 23, 2026. In anticipation thereof, the parties each filed pretrial
motions. Defendant, Republic Services of Pennsylvania LLC (“Republic”), filed
three motions in limine. Plaintiff, Lower Susquehanna Riverkeeper Association
(“LSRA”), filed a request for judicial notice. For the reasons that follow, the court
will deny each motion in limine and the request for judicial notice.
BACKGROUND 1
LSRA initiated this action based on allegations that Republic was violating
its National Pollutant Discharge Elimination Systems Permit (“NPDES Permit”).
(Doc. 1.) At summary judgment, Republic stipulated that it was liable for 419
exceedances of its NPDES Permit between July 2019 and April 2023. Lower
1 The court assumes familiarity with facts of this case and, therefore, provides an abbreviated
summary of this case’s background.
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Susquehanna Riverkeeper Ass’n v. Republic Servs. of Pa. LLC, No. 23-cv-00044,
2025 WL 976694, at *9 (M.D. Pa. Mar. 31, 2025). Accordingly, the court granted
summary judgment to LSRA on the issue of Republic’s liability for these
exceedances. Id. As to relief, the court determined that a genuine issue of material
fact existed concerning whether Republic should be assessed a civil penalty
pursuant to 33 U.S.C. § 1319(d). Id. at *10. Following summary judgment, the
court scheduled a bench trial date certain. (Doc. 70.)
On January 8, 2026, LSRA supplemented certain of its previously made
discovery responses in two important respects. First, LSRA supplemented two
interrogatory responses and produced approximately 500 pages of documents so as
to disclose certain Total Maximum Daily Load (“TMDL”) water monitoring data
collected by government agencies that had occurred in Kreutz Creek.2 LSRA had
previously thought this monitoring data was irrelevant to this case, because it
thought the monitoring did not measure the pollutants Republic released. (Doc. 92,
p. 5.) In December 2025, however, LSRA learned that the TMDL monitoring
measured “specific conductance,” which LSRA claims is correlated to osmotic
2 The documents produced are not part of the record. LSRA’s supplemental interrogatory
responses are located at Doc. 90-2, pp. 3, 5.
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pressure, one of the NPDES Permit values that Republic exceeded. (E.g., Doc. 93,
p. 3.) 3
Second, LSRA supplemented another interrogatory response to indicate that
it would be 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.)
Republic timely filed three motions in limine, two of which concern LSRA’s
recent disclosures. (Docs. 76, 87, 89.) These motions are fully briefed. (See
Docs. 77, 82, 88, 90, 91, 92, 98.) In partial response to Republic’s motions, LSRA
filed a request for judicial notice of six enumerated facts. (Doc. 93.) Republic
responded to LSRA’s request in one of its reply briefs on its motions in limine,
Doc. 98, as ordered by the court. (Doc. 97.)
J URISDICTION
The court has subject matter jurisdiction over this Clean Water Act citizens
suit pursuant to 28 U.S.C. §§ 1331, 1365.
DISCUSSION
Prior to trial, courts may rule on motions in limine involving the
admissibility of evidence. Such motions “narrow the evidentiary issues for trial
and . . . eliminate unnecessary trial interruptions.” Bradley v. Pittsburgh Bd. of
3 For ease of reference, the court uses the page numbers from the CM/ECF header.
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Educ., 913 F.2d 1064, 1069 (3d Cir. 1990). Here, Republic asks the court to
prohibit LSRA from (1) pursing the aforementioned injunctive relief; (2)
introducing certain opinions contained in the rebuttal expert report (“Shefftz
Expert Report”) written by economist Jonathan S. Shefftz (“Shefftz”); and (3)
introducing evidence concerning the TMDL water monitoring in Kreutz Creek.
On the other hand, LSRA asks the court to take judicial notice of six enumerated
facts seemingly related to the same TMDL water monitoring. The court considers
each request in turn.
A. Republic’s Request to Prohibit LSRA’s Request for Injunctive Relief
LSRA is requesting injunctive relief directing Republic to pay monies into a
fund for the benefit of remediation projects in Kreutz Creek. (Doc. 90-2, p. 4.)
Republic argues that LSRA should be precluded from doing so for three reasons.
First, LSRA did not request this relief in its complaint. (See Doc. 90, pp. 10–11.)
Second, LSRA failed to disclose that it was seeking this relief as required by Rule
26(a) and, therefore, should be barred from seeking it pursuant to Rule 37(c)(1).
(Id. at 10.) Third, Republic contends that the court has already determined that the
impending bench trial is about calculating a “civil penalty,” which by law cannot
be paid into a remedial fund. (Id. at 13.) None of these reasons are persuasive.
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1. Rule 54(c)
Republic’s first argument does not take Rule 54(c) into account. That rule
states, “final judgment,” other than a default judgment, “should grant the relief to
which each party is entitled, even if the party has not demanded that relief in its
pleadings.” Fed. R. Civ. P. 54(c). Under Rule 54(c), so long as a plaintiff has
stated a claim for relief, “it is the court's obligation to grant the relief to which the
prevailing party is entitled whether it has been specifically demanded or not.” USX
Corp. v. Barnhart, 395 F.3d 161, 165 (3d Cir. 2004) (quoting Kirby v. U.S. Gov’t,
Dep’t of Hous. & Urban Dev., 745 F.2d 204, 207 (3d Cir. 1984)). This means that
injunctive relief can be awarded even when not specifically demanded. 10 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2664 (4th ed.
Sept. 2025 update) (“[W]ith the merger of law and equity, specific or injunctive
relief may be awarded even though damages were prayed for and vice-versa.”
(footnotes omitted)).
Republic makes several references in its briefing to the relief sought by
LSRA as being a new “theory of relief.” (E.g., Doc. 90, p. 10.) It is true that Rule
54(c) does not permit a plaintiff to assert a new theory of relief—i.e., when a
plaintiff seeks not “to vary relief but to add judgments based on new claims.” USX
Corp., 395 F.3d at 165; accord Cooper v. Garman, No. 19-cv-02227, 2024 WL
4043505, at *5 (M.D. Pa. Sept. 4, 2024). LSRA is doing nothing of the sort. Its
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theory of relief remains the same: Republic violated the Clean Water Act 419 times
between July 2019 and April 2023. All LSRA is doing is attempting to vary the
relief it obtains for Republic’s Clean Water Act violations. Rule 54(c) does not
preclude LSRA from doing so. Compare Cooper, 2024 WL 4043505, at *4–6
(finding plaintiff was not asserting new theory of relief when he sought
compensatory damages, even though he only pleaded a request for punitive
damages), with Marshall v. Abdoun, No. 22-cv-0010, 2023 WL 2588166, at *10–
12 (E.D. Pa. Mar. 20, 2023) (affirming bankruptcy court’s determination that Rule
54(c) did not permit plaintiff to seek damages for an unpleaded intentional-
infliction-of-emotional-distress claim, even though the appropriateness of
emotional-distress damages under state statutory law had been an issue in the
case). 4
2. Rule 26(a) and 37(c)(1)
Republic’s second argument ambiguously does not identify which specific
provision of Rule 26(a) that LSRA purportedly violated. Given the argument’s
substance, it appears Republic is arguing that LSRA violated Rule 26(a)(1)(A)(iii).
4 Republic cites several Third Circuit cases in support of the proposition that a party may not
inject “a new form of relief on the eve of trial where the underlying basis for such relief was not
disclosed.” (Doc. 98, pp. 6–7.) The cited cases are inapposite, because none of them involve a
party trying to seek a different form of relief. Rather, they all involved one party attempting to
amend the complaint to add additional causes of action. See Gay v. Petsock, 917 F.2d 768, 772
(3d Cir. 1990); Berger v. Edgewater Steel Co., 911 F.2d 911, 923–24 (3d Cir. 1990); Clark v.
Township of Falls, 890 F.2d 611, 624 (3d Cir. 1989); Averbach v. Rival Mfg. Co., 879 F.2d 1196,
1202–03 (3d Cir. 1989).
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That rule requires a party to disclose, “a computation of each category of damages
claimed by the disclosing party.” Fed. R. Civ. P. 26(a)(1)(A)(iii). Reliance on this
rule is misplaced, because the relief at issue is an equitable remedy, not a
previously undisclosed category of damages. The court is persuaded by the
determination made by other district courts that equitable remedies are not subject
to disclosure under Rule 26(a)(1)(A)(iii). See City of Huntington v.
AmerisourceBergen Drug Corp., No. 3:17-cv-01362, 2020 WL 4589716, at *3 (D.
W. Va. Aug. 10, 2020) (“[B]ecause abatement is as an equitable remedy within the
court's discretion to fashion, abatement is not subject to the computation
requirements of Rule 26.”); N. Nat. Gas Co. v. L.D. Drilling, Inc., 405 F. Supp. 3d
981, 1002 (D. Kan. 2019) (determining the equitable remedy of disgorgement was
not subject to Rule 26(a)(1)(A)(iii) disclosure); United States v. Stinson, No. 6:14-
cv-1534, 2016 WL 8488241, at *7 (M.D. Fla. Nov. 22, 2016) (finding that
disgorgement was not “a damages remedy” and therefore fell outside the scope of
Rule 26(a)(1)(A)(iii)); Scott v. City of Phoenix, No. 09-cv-0875, 2011 WL
1085992, at *4 (D. Ariz. Mar. 24, 2011) (concluding that “declaratory judgment,
injunctive relief, and nominal damages” need not be disclosed under Rule
26(a)(1)(A)(iii)).
Even assuming, arguendo, that Rule 26(a)(1)(A)(iii) compelled LSRA to
disclose injunctive relief, Rule 37(c)(1) would not bar pursuit of the type of relief
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that LSRA seeks. Rule 37(c)(1) prohibits a party that has failed to disclose
information under Rule 26(a) from using that information at trial, “unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Here,
LSRA’s pursuit of injunctive relief is harmless to Republic. This is because LSRA
has offered to stipulate that it (1) will request payment into a remedial fund as an
alternative remedy to civil penalties, Doc. 90-5, p. 2; and (2) will “limit its request
under either remedial alternative to the same dollar amount” that was demanded as
a civil penalty. (Doc. 92, p. 10.) The court interprets LSRA’s position to be that it
will limit its request for injunctive relief to whatever amount the court determines
is an appropriate figure after consideration of the factors listed in 33 U.S.C. §
1319(d). Under these circumstances, Republic would be paying the same amount,
if any, whether as a civil penalty or as equitable relief. This result does not cause
Republic harm.
3. Purported Judicial Determination about the Scope of Trial
In advancing its third argument, Republic reads too much into the court’s
summary judgment memorandum opinion. It is true that the court referred to the
upcoming trial as the “penalty phase” of litigation and previewed the method it will
“use to calculate the appropriate civil penalty in this case.” Lower Susquehanna
Riverkeeper Ass’n, 2025 WL 976694, at *11. But context matters. At that time,
the court was not called upon to decide what remedies LSRA could and could not
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pursue at trial. Republic mistakenly interprets the court’s language to be deciding
a question not presented. At most, the language indicates that calculation of a civil
penalty will be an issue at trial, not that a civil penalty is the only remedy that
LSRA may seek or receive. 5
The court is mindful that, pursuant to Third Circuit precedent, a “civil
penalty” under the Clean Water Act must be paid to the United States Treasury.
Pub. Interest Research Grp. of N.J., Inc. v. Powell Duffryn Terminals Inc., 913
F.2d 64, 82 (3d Cir. 1990). If the court were to impose a “civil penalty,” it would
be improper to order such penalty to be paid into a remedial fund. Id. The court is
not running afoul of that precedent, however, by simply permitting LSRA to seek
payment of funds to a remedial fund instead of payment of a civil penalty to the
Treasury. See id. (“[A] court may fashion injunctive relief requiring a defendant to
pay monies into a remedial fund, if there is a nexus between the harm and the
remedy.”).
5 Another portion of the court’s summary judgment opinion—although not mentioned by either
party in the present briefing—is also worth contextualizing. The court explained that the Clean
Water Act’s “mandatory language demonstrates that once a citizen plaintiff establishes an
ongoing violation of a parameter at the time the complaint is filed, the court is obliged to assess
penalties for all proven violations of that parameter.” Lower Susquehanna Riverkeeper Ass’n,
2025 WL 976694, at *6 (quoting Nat. Res. Def. Council, Inc. v. Texaco Refining & Mktg., Inc., 2
F.3d 493, 503 (3d Cir. 1993)). The court quoted this language in discussing whether Republic’s
post-complaint compliance mooted LSRA’s claims for a civil penalty. Id. The quote, too,
should not be construed as a judgment about the availability of remedies other than a civil
penalty in this case.
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For the foregoing reasons, the court will not preclude LSRA from seeking
injunctive relief in the form of Republic paying monies into a remedial fund.
Thus, Republic’s motion in limine on this issue will be denied. (Doc. 89.)
B. Republic’s Request to Exclude Shefftz Expert Report
Republic objects to the admissibility of certain portions of the Shefftz Expert
Report and related testimony.6 Republic’s challenges can be grouped together into
two broad categories.
1. Purported Legal Opinions and Policy Advocacy
The first category consists of supposedly legal opinions about how the Clean
Water Act’s penalty provision, 33 U.S.C. § 1319(d), should be interpreted and
policy arguments in support of those interpretations. The arguments to which
Republic objects generally relate to the “economic benefit” factor of § 1319(d). 7 A
representative example follows:
Economic benefit does not represent compensation to a plaintiff as in a
typical damages calculation for a tort case. Instead, economic benefit
is the minimum amount that a defendant must pay as a civil penalty so
as to return that defendant to the financial position it would have been
in had it complied in a timely manner. Therefore, were the economic
benefit not to be fully disgorged in the form of a civil penalty payment,
6 LSRA has not yet stated whether or not it will attempt to introduce the Shefftz Expert Report at
trial. The report does not seem to appear on LSRA’s exhibit list. Nonetheless, for the purpose of
resolving Republic’s motion, the court will assume that LSRA will attempt to introduce it at trial.
7 The Clean Water Act does not define “economic benefit.” United States v. Righter, No. 08-cv-
0670, 2010 WL 4977046, at *2 (M.D. Pa. Dec. 2, 2010).
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then the residual financial gain could be construed as representing an
unfair competitive business advantage to a defendant.
A civil penalty insufficient to disgorge the entire amount of the
probability-adjusted economic benefit figure would fail to make a
defendant 	financially 	indifferent 	between 	compliance 	versus
noncompliance.
(Doc. 77-2, p. 12.)
Republic is correct that an expert witness may not testify as to legal opinions.
Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006). This
prohibition is especially important in jury trials, Lozano v. City of Hazelton, 241
F.R.D. 252, 256 (M.D. Pa. 2007), where expert legal opinions could “usurp the
District Court's pivotal role in explaining the law to the jury.” Berckeley Inv. Grp.,
455 F.3d at 217. Such concerns are not as present “in the case where the factual
findings are to be made by the Court.” Suter v. Gen. Accident Ins. Co. of Am., 424
F. Supp. 2d 781, 793 (D.N.J. 2006). Even still, the court should not permit an
expert to testify at a bench trial as to legal conclusions and analysis. See Lozano,
241 F.R.D. at 256.
Republic is incorrect, however, that the Shefftz Expert Report is advancing
legal opinions. Opinions on how the court should think about “economic benefit,”
although wrapped in legalistic language, do not represent legal conclusions. They
are opinions about what is economically necessary to achieve the Clean Water
Act’s well-settled goal of financially deterring violators. See United States v. Mun.
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Auth. of Union Twp., 150 F.3d 259, 263 (3d Cir. 1998) (“It is apparent . . . that the
goal of the economic benefit analysis is to prevent a violator from profiting from
its wrongdoing.”); Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d
1128, 1141 (11th Cir. 1990) (“Insuring that violators do not reap economic benefit
by failing to comply with the statutory mandate is of key importance if the
penalties are to successfully to deter violations.”); Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 890 F. Supp. 470, 491 (D.S.C. 1995) (“A
penalty serves as a successful deterrent only if potential violators believe that they
will be worse off by not complying with the applicable requirements.”). This is
precisely a topic about which one would expect an economist to opine.
The same is true for the opinions about adjusting the economic-benefit
analysis based on the probability of detection and enforcement of the violation. As
an example of this principle, the Shefftz Expert Report theorizes:
[I]f Defendant in this case knew that for every similar violation the
probability of ultimately paying a penalty that recaptured economic
benefit was only 25 percent (i.e., one-fourth), then the economic benefit
result would have to be multiplied by a factor of four for penalty-setting
purposes. 	As 	the 	probability 	of 	detection-prosecution-payment
declines, then the amount of money proportionately increases that
would 	make 	a 	defendant 	indifferent 	between 	compliance 	versus
noncompliance.
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(Doc. 77-2, p. 10.) Opinions about the role probability adjustments can play in
achieving financial deterrence are economic in nature, not legal. 8 See Laidlaw, 890
F. Supp. at 492 n.16 (describing how probability adjustments factor into “the
economic theory of deterrence”).
The court recognizes that Republic objects to the relevancy of this
probability-adjustment theory. (Doc. 91, p. 8.) This objection is seemingly well
founded. LSRA represents that Shefftz offers no opinion on whether probability
adjustments are necessary in this case. (Doc. 82, p. 9.) Given LSRA’s
acknowledgment, it is unclear whether LSRA will introduce evidence concerning
probability adjustments at trial. The court, therefore, need not address the
relevancy issue at this time. Republic may renew its relevancy objection at trial if
the need arises.
2. Quotation from Previous Expert Report and Citations to
Previous Cases
The second category consists of a quotation from a previous expert report
that Shefftz authored in another case and citations to cases that have apparently
adopted Shefftz’s economic-benefit calculations. (Doc. 77-2, pp. 14–16.)
Republic argues that these references represent an improper attempt to bolster his
8 Republic faults Shefftz for using two hypotheticals in advancing his opinions. (Doc. 77, pp. 12,
15.) This objection is meritless. These hypotheticals are helpful illustrations of financial
deterrence in action and how, in Shefftz’s opinion as an economist, probability adjustments
generally can achieve financial deterrence. (See Doc. 77-2, p. 11–12.)
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credibility, which, if allowed, would unfairly prejudice Republic since Shefftz
makes no mention of cases in which courts declined to adopt his economic-benefit
calculation. (Doc. 91, pp. 9–12.) This argument in unavailing. First, Republic
cites no authority that suggests an expert report is per se barred from including
citations to previous cases adopting the expert’s findings. Second, Republic
overstates the danger of undue prejudice. The court is capable of making
credibility determinations as the factfinder in this case without being influenced by
what other courts have decided. In any event, though, Republic is not precluded
from responding to Shefftz’s citations, if they are admitted, with citations to court
opinions that have rejected Shefftz’s economic-damages calculation and
conducting a cross examination on this issue.
Under these circumstances, it is not appropriate to strike this portion of the
Shefftz Expert Report or any other challenged portion. Accordingly, the court will
deny Republic’s motion in limine addressing this issue. (Doc. 76.)
C. Republic’s Request to Exclude Evidence Concerning TMDL Water
Monitoring in Kreutz Creek
The court has several questions it wants to ask counsel about this issue.
Therefore, the court will defer ruling on Republic’s motion in limine on this issue,
Doc. 87, until after the court has posed its questions to counsel at the final pretrial
conference, which is scheduled for February 20, 2026.
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D. LSRA’s Request for Judicial Notice
Pursuant to Federal Rule of Evidence 201(b)(2), LSRA requests that the court
take judicial notice of six facts that seemingly relate to TMDL water monitoring in
Kreutz Creek. (Doc. 93, pp. 1–3.) Rule 201(b)(2) permits courts to “judicially
notice a fact that is not subject to reasonable dispute because it . . . can be
accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.” Fed. R. Evid. 201(b)(2). LSRA argues that the six facts in
question satisfy Rule 201(b)(2) because they are located on government websites.
(Doc. 93, p. 3.) LSRA is correct that courts can take judicial notice of information
on government websites. E.g., Vanderklok v. United States, 868 F.3d 189, 205
n.16 (3d Cir. 2017); Smith v. Radian Settlement Servs., Inc., 717 F. Supp. 3d 415,
421 n.36 (M.D. Pa. 2024); In re Wellbutrin SR/Zyban Antitrust Litig., 281 F. Supp.
2d 751, 754 n.2 (E.D. Pa. 2003).9 Even so, this court will not judicially notice
facts before it can determine that they are relevant facts. See Al-Hasani v. Sec’y
U.S. Dep’t of Homeland Sec., 81 F.4th 291, 301 (3d Cir. 2023) (declining to take
judicial notice of irrelevant facts); Kamden-Ouaffo v. Hucarro, No. 2:16-cv-8859,
2017 WL 11724428, at *2 (D.N.J. Jan. 13, 2017) (same). LSRA has not
articulated why these facts are relevant to this case. The court will not guess why
9 This does not necessarily mean that the court is concluding that facts are not subject to
reasonable dispute merely because they appear on a governmental website. The court makes no
determination at this stage about whether the facts LSRA wants noticed are subject to reasonable
dispute under Rule 201(b)(2).
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they are so, especially outside the context of trial and when Republic argues that
the facts are irrelevant. (Doc. 98, p. 12.) Accordingly, the court will deny LSRA’s
request for judicial notice without prejudice.
CONCLUSION
For the foregoing reasons, the court will (1) deny with prejudice Republic’s
motion in limine concerning LSRA’s request for injunctive relief, Doc. 89; (2)
deny without prejudice Republic’s motion in limine concerning the Shefftz Expert
Report, Doc. 76; (3) defer ruling on Republic’s motion in limine concerning the
TMDL water monitoring information, Doc. 87, until the final pretrial conference;
and (4) deny without prejudice LSRA’s request for judicial notice, Doc. 93. An
appropriate order will issue.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: February 19, 2026
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