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

• Decision Date: 10 December 2014
• Docket Number: Civil Action No. 12-342
• Court: U.S. District Court — Western District of Pennsylvania
• Parties: PENNENVIRONMENT and SIERRA CLUB, Plaintiffs, v. PPG INDUSTRIES, INC., BOROUGH OF FORD CITY, and BUFFALO & PITTSBURGH RAILROAD, INC., Defendants.

PENNENVIRONMENT and SIERRA CLUB, Plaintiffs, v. PPG INDUSTRIES, INC., BOROUGH OF FORD CITY,and BUFFALO & PITTSBURGH RAILROAD, INC., Defendants.

Civil Action No. 12-342

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

December 10, 2014

Member Cases: 12-527, 13-1395, 13-1396,14-229

MEMORANDUM OPINION AND ORDER

Plaintiffs, PennEnvironment and Sierra Club, bring these citizen suits pursuant to section 505 of 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), the Borough of Ford City (Ford City), and Buffalo & Pittsburgh Railroad, Inc. (BPRI), 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.¹

Presently pending before the Court is Plaintiffs' motion for preliminary injunction, which seeks to compel PPG to apply for two National Pollutant Discharge Elimination System ("NPDES") permits regarding its discharges related to the Site and, in the interim, to complywith the requirements of the Administrative Order issued in 2009 by the Pennsylvania Department of Environmental Protection (PADEP). For the reasons that follow, the motion will be granted in part and denied in part.

Facts

The Site is located in North Buffalo and Cadogan Townships in Armstrong County, Pennsylvania. It is bordered by Route 128 to the north, the Allegheny River to the south, Glade Run, a tributary of the Allegheny River, to the west and a feature that PPG terms the "Drainage Ditch" which flows southward and discharges into the Allegheny River to the east. (CWA Compl. ¶ 15.)² From 1949 until 1970, PPG used parts of the property to dispose of slurry waste and solid waste from its former glass manufacturing facility across the river in Ford City, Pennsylvania. (2009 Administrative Order at PADEP3).³

PPG created three slurry lagoons in an area formerly used as sandstone quarry in which it deposited the slurry waste. (Treatment Plan Report, Former Ford City Facility Slurry Lagoon Area, prepared by Shaw Environmental, Inc. (Dec. 2012) ("TPR") at 2).⁴ Collectively, the lagoons and surrounding area comprise an area of approximately 77 acres called the "slurry lagoon area" ("SLA") on the western part of the property. PPG also disposed of solid waste in a landfill at the Site called the "solid waste disposal area" ("SWDA") beginning in the 1920s until 1967. (2009 Administrative Order at PADEP3.) The Allegheny River lies to the south of both the SLA and SWDA. Glade Run, a tributary to the Allegheny River, lies to the west of the SLA. (TPR at 1.)

In June 1994, PADEP conducted sampling and a survey of the streams in and around theSite. (ECF No. 119 Ex. 10.) The report of the survey stated that sediment samples collected from Glade Run downstream of the SLA contained high levels of lead, chromium, arsenic, barium, copper, nickel, aluminum and zinc. (Id. at PPG008633.) The report found that, of those metals, the lead, arsenic, barium, and chromium sediment analysis exhibited hazardous waste characteristics. The report also stated that there were no benthic macroinvertebrates present in the substrate collected from Glade Run downstream of the SLA. The report compared sediment samples from Glade Run downstream of the SLA with samples taken upstream of the SLA and found that the downstream samples exhibited higher levels of lead, chromium, copper, nickel, aluminum, and zinc. (Id. at PPG008634). The report concluded that the discolored seeps have a visible impact on the stream and that the slurry lagoon is having an adverse impact on the stream water quality and aquatic life. (Id. at PPG008635).

In a subsequent memorandum, PADEP noted that "the slurry lagoon seeps are having an adverse impact on aquatic life in on-site stream." (ECF No. 119 Ex. 11.) The memorandum found that the data from PPG's own risk assessment submitted to PADEP indicated that both lead and antimony in sediments may "impact aquatic life and benthic organisms potentially exposed to slurry lagoon sediments." (Id. at PADEP000612.)

2009 Administrative Order

On March 9, 2009, PADEP issued an Administrative Order to PPG regarding the Site which contained factual findings and imposed certain performance obligations. (2009 Administrative Order at PADEP2-9). In the letter accompanying the Administrative Order, PADEP 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." (Id. at PADEP 1.)

The Administrative Order described the process by which precipitation becomes contaminated with hazardous substances: "Precipitation which infiltrates the Slurry Lagoons and the Landfill at the Site becomes contaminated with hazardous substances, as defined under the Hazardous Sites Cleanup Act (HSCA) ... and then is discharged into the waters of the Commonwealth. This contaminated precipitation is known as 'Leachate.'" (2009 Administrative Order at PADEP4). The Order further stated that "PPG is allowing contaminated Leachate and other liquids to be discharged from the Site into waters of the Commonwealth, resulting in pollution of those waters of the Commonwealth." (Id. at PADEP5). The Administrative Order stated that the industrial waste discharges from the Site "are pollutional and have a very high pH and contain metals and other toxic chemicals." (Id. at PADEP4).

The Administrative Order imposed, inter alia, the following Performance Obligations on PPG:

A. PPG shall conduct weekly monitoring and reporting of seeps, for flow, total suspended solids, oil and grease, iron, aluminum, lead, chromium, antimony, arsenic, and pH and report results to PADEP on a monthly basis;

C. Until such time as discharges, leachate, and seeps are collected and conveyed to an industrial waste treatment facility and the discharge from said facility is authorized by an NPDES permit, PPG shall implement interim abatement measures;

D. PPG shall submit to the Department for review and approval a treatment plan and schedule ("Treatment Plan") to collect and treat all industrial waste discharges, Leachate and seeps from the Site into the waters of the Commonwealth.

(Id. at PADEP6-7 ¶¶ A, C, D.)

Samuel Harper, who prior to his retirement in October 2013 was the Program Manager for the Water Management Program at PADEP (Harper Aff. ¶ 1),⁵ explains that he issued the Administrative Order because of:

PPG's long-standing non-compliance with federal and state law. In particular, the Department was concerned with PPG's discharge of polluted or contaminated leachate or wastewater to the waters of the Commonwealth and of the United States. As early as 1971, the Department had ordered PPG to treat its discharges from the Site or to eliminate the discharges. The site history was reviewed at the time the Administrative Order was issued. In 2009 the PADEP, recognizing that PPG continued to discharge pollutants from the Site into state and federal waters without being authorized by an NPDES permit, issued the Administrative Order directing PPG to apply for and obtain an NPDES permit.

The Administrative Order was issued to address PPG's discharges to the waters of the Commonwealth of Pennsylvania, particularly the Allegheny River and adjacent wetlands, by requiring PPG to obtain and abide by the required NPDES permit(s) for the Site.

At the time that the Administrative Order was issued, PPG was, and had been for decades, required by law to have an NPDES permit for its discharges from the Site. This obligation exists irrespective of PPG's issuance in 2001 of a notice of intent to remediate the Site under Pennsylvania's Land Recycling Program ("Act 2"), which had been available to PPG since early in 1995. Remediation under Act 2 is voluntary. An NPDES permit is not. PPG's obligation to have an NPDES permit continues if PPG decides to abandon voluntary remediation under Act 2.

The Administrative Order also included other requirements, such as the construction of an interim treatment system, to minimize the impact of PPG's polluted discharges in the period before it applied for, obtained, and came into compliance with an NPDES permit. These requirements were not intended to either supplant or delay PPG's compliance with the NPDES permitting system.

The Administrative Order was purely focused on requiring PPG to obtain an NPDES permit. Nothing in the Order was intended to address or relate to Act 2.

(Harper Aff. ¶¶ 3-7.) Plaintiffs note that James Nairn, PPG's expert on Act 2 (Nairn Dep. at 135-36),⁶ explained that Act 2 is a voluntary program, pursuant to which PPG can unilaterally decide how little or how much remediation it wishes to undertake, and it could even walk away without taking any action. (Nairn Dep. at 9, 13, 37.) He also indicated that, in his experience, the longest remediation effort took "at least four or five years, maybe longer" (Nairn Dep. at 28),but Plaintiffs note that it has been 13 years since PPG filed its notice of intent to remediate and it is not close to completing any remediation action.

Interim Abatement System

PPG submitted its construction plan for the Interim Abatement System ("IAS") on April 8, 2009, and submitted the Treatment Plan in June of 2009. (ECF No. 178 Exs. B, C.) On July 2, 2009, PADEP issued its approval (pursuant to a May 26, 2009 addendum to the IAS slightly modifying the original IAS). (ECF No. 178 Exs. D, E.) The Addendum described the location where pH was to be...