This section contains the nature of the case and procedural background.

Ps asked this Court to issue a preliminary injunction enjoining the construction and operation of a proposed cement grinding facility, which they claimed would have a disparate impact on the residents of their community. Ds moved to dismiss Ps’ claims. Ps alleged that Ds violated Title VI and the EPA regulations when Ds issued air pollution control permits to operate a cement grinding facility without regard to the discriminatory effect it would have in Ps' neighborhood. On April 19, 2001, the court granted Ps' motion for a preliminary injunction and declaratory relief. It ruled that Ps had established a reasonable likelihood that the operation of the proposed cement grinding facility, which would emit various pollutants and require the annual ingress and egress of nearly 80,000 delivery trucks, would have an adverse, disparate impact on the residents of the Waterfront South neighborhood based on their race, color, or national origin. Five days later, the United States Supreme Court decided Alexander v. Sandoval: Title VI displays an intent to create a freestanding private right of action to enforce regulations promulgated under § 602. Next, the court held that the EPA's Title VI implementing regulations, codified at 40 C.F.R. §§ 7.10 et seq., created rights which are enforceable under § 1983. The court held that Ds had failed to overcome their burden to show 'by express provision or other specific evidence from the statute itself that Congress intended to foreclose private enforcement.' In a divided two-to-one decision, the United States Court of Appeals for the Third Circuit disagreed and, on December 17, 2001, reversed this Court's Opinion and Order of May 10, 2001, granting preliminary injunctive relief, and remanded the case for further proceedings. The appeals court held that the EPA's Title VI implementing regulations, by themselves, did not create rights that are enforceable under § 1983. Ps filed a motion for leave to file a Second Amended Complaint, which asserted claims of Private and Public Nuisance. The Fifth and Sixth Counts alleged claims that St. Lawrence Co. (SLC (D)) has created a public and private nuisance to the residents of Waterfront South through the operation of its cement grinding facility, and 'through the associated use of diesel trucks[, which] has caused dust, soot, vapors, fumes, and fumes to be emitted.' Ps ask this Court to grant declaratory relief in the form of rescinding the air permits and certificates which Ds issued to SLC (D), enjoining Ds from taking further action that will permit the operation of SLC's (D) cement grinding facility. Ds filed motions to dismiss Ps' Second Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). SLC (D) moved to dismiss the nuisance claims because Ps have failed to allege that the construction of the cement grinding facility was in violation of regulations promulgated under the Clean Air Act, 42 U.S.C. § 7409(1) (CAA), and permits issued by Ds; they have failed to state a valid claim of either private or public nuisance.

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