Pennenvironment & Sierra Club v. PPG Indus., Inc.

• Citation: 964 F.Supp.2d 429
• Decision Date: 08 August 2013
• Docket Number: Civil Action No. 12–342.
• Parties: PENNENVIRONMENT and Sierra Club, Plaintiffs, v. PPG INDUSTRIES, INC. and Borough of Ford City, Defendants.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania

964 F.Supp.2d 429

PENNENVIRONMENT and Sierra Club, Plaintiffs,

v.PPG INDUSTRIES, INC. and Borough of Ford City, Defendants.

Civil Action No. 12–342.

United States District Court, W.D. Pennsylvania.

Aug. 8, 2013.

Bruce J. Terris, Carolyn Smith Pravlik, Patrick A. Sheldon, Terris, Pravlik & Millian, LLP, Washington, DC, Thomas J. Farrell, Emily McNally, Farrell & Reisinger LLC, Pittsburgh, PA, for Plaintiffs.

Jessica L. Sharrow, Paul D. Steinman, Richard S. Wiedman, Eckert Seamans Cherin & Mellott, Pittsburgh, PA, Frank A. Wolfe, Attorney at Law, Ford City, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. MITCHELL, United States Magistrate Judge.

Plaintiffs, PennEnvironment and Sierra Club, bring this citizens suit pursuant to the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a)(1) (Clean Water Act or CWA), section 7002(a)(1)(B) of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B) (RCRA), and section 601(c) of the Pennsylvania Clean Streams Law, 35 P.S. § 691.601(c) (CSL), against Defendants, PPG Industries, Inc. (PPG) and the Borough of Ford City (Ford City), to remedy the alleged imminent and substantial endangerment to health and the environment presented by contamination of a site in Armstrong County, Pennsylvania used and operated by PPG (the “Site”), contamination of surface waters and sediments in the Allegheny River and Glade Run in the vicinity of the Site, and contamination of groundwater associated with the Site.

Presently pending before the Court are two motions to dismiss, one filed by PPG and the other by Ford City. For the reasons that follow, the motions will be denied.

Facts

Plaintiffs' complaints allege that from 1899 to 1972, PPG owned land in Cadogan and North Buffalo Townships that was used by PPG to dispose of waste from its glass manufacturing plant in Ford City. (CWA Compl. ¶ 14; RCRA Compl. ¶ 16.) ¹ From 1950 to 1970, PPG disposed of waste slurry in areas of that land that had formerly been used as a sandstone quarry. PPG created three slurry lagoons within the quarry, which occupy an area of approximately 77 acres. (CWA Compl. ¶¶ 14–15; RCRA Compl. ¶¶ 16–17.) Those slurry lagoons are bordered by the Allegheny River to the south, Route 128 to the north, Glade Run (a tributary to the Allegheny River) to the west, and a feature that PPG terms the “Drainage Ditch” to the east. A solid waste disposal area used by PPG from the 1920s to the 1970s, a plumbing fixture landfill used and occupied by Eljer, Inc., and four baseball fields are east of the Drainage Ditch. (CWA Compl. ¶ 16; RCRA Compl. ¶ 18.) Plaintiffs have alleged that the slurry lagoons, solid waste disposal area, plumbing fixture landfill and baseball fields, together measuring approximately 150 acres, constitute what they call the “PPG Waste Site.” (CWA Compl. ¶ 17; RCRA Compl. ¶ 19.) PPG calls it the “Ford City Site” and contends that it does not include the plumbing fixture landfill or the ballfields. The Court will refer to it as “the Site.” The issue of whether the plumbing fixture landfill and the ballfields are included is discussed below.

On March 8, 1971, PPG and the Pennsylvania Department of Environmental Resources—now known as the Pennsylvania Department of Environmental Protection (“PADEP”)—entered into an Agreement and Stipulation concerning discharges of industrial waste from the Site into the Allegheny River. (CWA Compl. ¶ 18; RCRA Compl. ¶ 20; PPG Ex. 7.) The Agreement and Stipulation required PPG to submit a remediation plan that would either eliminate the continuing discharges or treat the discharges in perpetuity. (CWA Compl. ¶ 19; RCRA Compl. ¶ 21.) Plaintiffs note that it has now been more than 40 years since PPG signed the Agreement and Stipulation agreeing to stop or treat the discharges.

On August 1, 1972, PPG submitted a remediation plan that proposed continuing untreated discharge into the Allegheny River. (CWA Compl. ¶ 20; RCRA Compl. ¶ 22.) On October 16, 1972, PPG sold the Site to Ford City for one dollar. (CWA Compl. ¶ 21; RCRA Compl. ¶ 23; PPG Ex. 5.) On or about March 16, 1973, PADEP informed PPG that its plan was unacceptable and requested that PPG revise the plan to provide for treatment of the discharge. On or about May 16, 1973, PPG withdrew its plan. (CWA Compl. ¶ 22; RCRA Compl. ¶ 24; PPG Ex. 8.)

Plaintiffs allege that, since at least April 16, 1973, PPG has been required to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit for the Site and has failed to do so. (CWA Compl. ¶ 23.) PADEP informed PPG at least as early as February 21, 1992, that PPG was required to obtain a permit under the CSL, but PPG has failed to do so. (CWA Compl. ¶ 24; PPG Ex. 11.) PPG notes that, in response to the notice, it prepared a Remedial Investigation Work Plan which the Department approved in November 1992. (PPG Ex. 14.)

PPG indicates that, based on the previous studies and work that had been done on the Site to mitigate risk to human health and the environment, it entered the Site into Pennsylvania's Land Recycling Program (commonly known as “Act 2”) in 2001. Pennsylvania's Act 2 program allows owners and operators to “voluntarily” (i.e., without the issuance of a PADEP Order) remediate properties under the supervision of PADEP. The study and remediation of a property under Act 2 can take place either before or after an owner/operator has formally submitted the property to the Act 2 process. Nonetheless, PADEP must approve all work plans and remediation plans and has the ability to require changes and revisions in order to assure compliance with Act 2 remediation standards. PPG submitted the Site to the Act 2 process by filing a Notice of Intent to Remediate (“NIR”) in 2001, pursuant to which PPG committed to ensure that the Site, including the leachate from the slurry lagoon area at issue in Plaintiffs' Complaints, met the Act 2 statutory site-specific remediation standards. (PPG Exs. 17, 18.) As part of the Act 2 process, PPG submitted a Remedial Investigation Report for the slurry lagoon area on July 31, 2001 and an Addendum on October 15, 2001. (PPG Exs. 19, 20.) PADEP approved these reports on October 19, 2001. (PPG Ex. 21.)

PPG states that, in order to construct the selected remedy, in 2001, it developed and submitted to PADEP an NPDES Permit Application for Discharges Associated with Construction Activities that contained an Erosion and Sedimentation (E & S) Control Plan to address the leachate seeps during the construction phase. (PPG Ex. 22.) However, PADEP did not approve this E & S Plan, but instead issued PPG an interim discharge permit on November 19, 2002 that required the collection and treatment of seeps resulting from the leachate from the slurry lagoon area during construction. (PPG Ex. 23.)

On March 9, 2009, PADEP issued an Administrative Order (“2009 Administrative Order”), in which it stated that “[t]he Department believes that the discharges coming from the site and entering into the Allegheny River and Glade Run pose a significant threat to public health and the environment.” (CWA Compl. ¶ 26; RCRA Compl. ¶ 27; PPG Ex. 1 at PADEP 1.) The site referred to in the 2009 Administrative Order includes at least the slurry lagoons and solid waste disposal area. The 2009 Administrative Order states that “[p]recipitation which infiltrates the Slurry Lagoons and the Landfill at the Site becomes contaminated with hazardous substances.” (CWA Compl. ¶ 27; RCRA Compl. ¶ 28; PPG Ex. 2 ¶ 14.) In addition, the 2009 Administrative Order states that “[e]nvironmental assessments have found that the Slurry Lagoons at the Site are contaminated with various hazardous substances [including] antimony, arsenic, and lead.” (PPG Ex. 2 ¶ 13.)

The Order stated that discharges seep out “at various locations at the Site and then flow or are conveyed into the waters of the Commonwealth,” including the Allegheny River and Glade Run. Leachate discharged into Glade Run, in turn, is discharged into the Allegheny River. Leachate seeps through fissures on the cliff face of the south side of the Site and is discharged to the Allegheny River through culverts under the railroad tracks that are at the base of the cliff. Leachate also enters the Allegheny River through “Outfall 001,” which was constructed by PPG. (CWA Compl. ¶ 28; RCRA Compl. ¶ 29; PPG Ex. 2 ¶ 15.) The Order also stated that the discharges, “which are pollutional and have a very high pH and contain metals and other toxic chemicals, continue unabated as of the date of this Administrative Order.” (CWA Compl. ¶ 30; RCRA Compl. ¶ 31; PPG Ex. 2 ¶ 12.)

The Order required PPG to conduct “interim monitoring and reporting of the quality and quantity” of certain seeps, to “sample the receiving streams above and below the points of discharge,” and to monitor weekly both the seeps and streams for certain parameters. (PPG Ex. 2 at 4–5 ¶ A.) The Order required PPG to submit an interim abatement plan within 30 days and to submit a treatment plan within 90 days. (PPG Ex. 2 at 5 ¶¶ C, D.) Subparagraph (ii) of paragraph D required PPG to identify in its Treatment Plan, inter alia, “the necessary NPDES permit(s) for the authorization of the discharges associated with the collection and treatment system” and to “provide a schedule for applying for the necessary permits.” (CWA Compl. ¶¶ 31–33.)

On July 2, 2009, PADEP approved PPG's May 26, 2009 Addendum to Interim Abatement Plan (the “July 2 Addendum”), such that PPG was directed to:

collect wastewater from the Site and treat that wastewater in a treatment system that will be designed to address any accumulated sludge that may result from treatment and neutralization. PPG shall install, operate, and maintain the collection and treatment system in accordance with the requirements of AttachmentA. In addition, PPG shall design the collection system using pipes, therefore, avoiding the collection and treatment of uncontaminated storm water runoff. Finally, PPG...