PennEnvironment v. PPG Indus., Inc., Civil Action Nos. 12–342

• Decision Date: 31 August 2015
• Docket Number: 14–229.,12–527,13–1396,Civil Action Nos. 12–342,13–1395
• Citation: 127 F.Supp.3d 336
• Parties: PENNENVIRONMENT and Sierra Club, Plaintiffs, v. PPG INDUSTRIES, INC., Borough of Ford City, and Buffalo & Pittsburgh Railroad, Inc., Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

127 F.Supp.3d 336

PENNENVIRONMENT and Sierra Club, Plaintiffs,

v.PPG INDUSTRIES, INC., Borough of Ford City, and Buffalo & Pittsburgh Railroad, Inc., Defendants.

Civil Action Nos. 12–342

12–527

13–1395

13–1396

14–229.

United States District Court, W.D. Pennsylvania.

Signed Aug. 31, 2015.

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

Carolyn Batz McGee, Daniel B. McLane, Jessica L. Sharrow, Paul D. Steinman, Richard S. Wiedman, Eckert Seamans Cherin & Mellott, LLC, Pittsburgh, PA, Anthony J. Vigilante, Paletta & Pagliari, Lower Burrell, PA, Elizabeth M. Rothenberg, McGuirewoods LLP, Jacksonville, FL, Paul K. Stockman, McGuirewoods LLP, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. MITCHELL, United States Magistrate Judge.

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 are cross-motions for partial summary judgment, filed by Plaintiffs and PPG. Plaintiffs contend that the evidence of record demonstrates that PPG should be held liable for making discharges without a permit in violation of both the CWA (Counts I, II, XIII and XV) and the CSL (Counts III, IV and XIV), for violating the 2009 Administrative Order issued by the Pennsylvania Department of Environmental Protection (PADEP) (Counts IX, X, XVI, XVII, XX, XXI, XXII and XXIII), and for participating in activities which may present an imminent and substantial endangerment to health or the environment (as alleged in the RCRA Complaints). PPG seeks judgment in its favor on the issue of whether two areas of land (the Eljer landfill and the baseball fields) are included within the definition of the Site. For the reasons that follow, Plaintiffs' motion will be granted and PPG's motion will be denied.

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. (Revised Treatment Plan Report at 3.)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 The flat glass manufacturing operation which generated the waste deposited at the Site has a Standard Industrial Classification of 3211 (Flat Glass). See, e.g., Letter from Thomas J. Ebbert, PPG Industries, Inc., to Scott Geiser, Fire Chief–Ford City Hose Company, enclosing 2012 Pennsylvania Tier II Emergency and Hazardous Chemical Inventory (January 29, 2013) (PPG016160)⁴ ; see also United States Department of Labor, Occupational Safety & Health Administration, Division D: Manufacturing, Major Group 32: Stone, Clay, Glass, and Concrete Products, Industry Group 321: Flat Glass. Operations with such a classification are designated as industrial activities. 40 C.F.R. § 122.26(b)(14)(iii).

PPG created three slurry lagoons in an area formerly used as a sandstone quarry in which it deposited the slurry waste. (Revised Treatment Plan Report at 2.) 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. (Administrative Order at PADEP3.) The Allegheny River and a railroad line lie to the south of both the SLA and SWDA. Glade Run, a tributary to the Allegheny River, lies to the west of the SLA. (Revised Treatment Plan Report at 1.)

On its southern side, the SLA slopes steeply from the top of the slurry lagoon to the Buffalo and Pittsburgh Railroad tracks (formerly Pittsburgh and Shawmut) that run parallel to the Allegheny River. (Baker Envt'l, Inc. Remedial Investigation Report ("Baker RIR") at 1–2 (PPG001818.)⁵ This slope is interrupted by the South Bench, a wide flat area. (Id. at 1–3 (PPG001819)). On its western side, the SLA slopes to Glade Run. (Revised Treatment Plan Report at 9 (PPG0050753).) This slope is referred to as the Western Slope. (Id. at 17 (PPG0050761)). A stream which PPG refers to as the Drainage Ditch runs between the SLA and SWDA. (Revised Treatment Plan Report at 3, 16 (PPG0050747, PPG0050760). See also Baker RIR at 2–4 (PPG001831).

Leachate is water contaminated as a result of its contact with the waste. Leachate is formed when uncontaminated stormwater and groundwater pass through the waste and become contaminated with the contaminants in the waste. (Administrative Order at 2 (PADEP000004) ¶ 14.) Fractures within the weakly cemented SLA waste provide a pathway for the leachate to travel. (Revised Treatment Plan Report at 129 (PPG0050873)). Some of the leachate emerges from the waste on the land surface at locations known as seeps. (Id. at 10 (PPG0050754)). The leachate that emerges is referred to as leachate, seeps, seepage, seepage water, and seep water. Infiltrating stormwater is referred to as infiltration. Id.

As PPG describes: "Precipitation infiltrating the former slurry lagoons and groundwater recharge within the subsurface provide the primary sources of water that contribute to the ongoing seepage from the SLA and also contribute significantly to the base flow of the Drainage Ditch." (Revised Treatment Plan Report at 10 (PPG0050754). Leachate within the SLA "is expected to flow radially toward the east, south, and west, discharging into the Drainage Ditch on the east and onto the slopes on the southern and western sides of the former slurry lagoons." (Id. ) Some of this leachate flows within the slurry material and discharges at ground surface through seeps. (Id.; see Administrative Order at 3 (PADEP000005) ¶ 15.)

PPG has described the nature of the SLA and its seeps as "[being] primarily associated with groundwater affected by contact with rouge, and occur along the outside of the southern and western flanks of the SLA Site." Request for Proposal, Professional Environmental and Engineering Design Services, Former Ford City Facility Slurry Impoundment (March 17, 2009) at 4 (PPG034173).⁶ PPG further described that:

The primary issue of interest is the seep discharge of groundwater exhibiting elevated pH along the steep slopes downgradient of the former impoundments. Various metals have been detected in the seeps, including arsenic, chromium, and lead. These metals and the elevated pH are believed to arise as a result of contact of groundwater with the "rouge" located in the former slurry lagoons, and possibly within portions of the dikes.

Id.

The seep water contains metals, including aluminum, antimony, arsenic, chromium, iron, and lead. (December 2014 Monthly Progress Report,⁷ Table 4 (PPG0053049–53064); see also Revised Treatment Plan Report at 54 (PPG0050798). The seep water also has regularly had a high pH. PADEP describes the seep water or leachate as having "a very high pH." (Administrative Order at 2 (PADEP000004) ¶ 12.)

PPG notes that every value with a "U" in its monthly progress report means that a metal was not detected at the reporting limit. (December 2014 Monthly Progress Report, Table 4 at 16 (PPG0050364). Plaintiffs reply that it is irrelevant that some of the metals in some instances were not detected above the reporting limit since they are not asserting that the data demonstrate violations of a numerical discharge limit, such as the numerical limit imposed on PPG's discharge for Total Suspended Solids (TSS). Instead, they rely upon the data to demonstrate the presence of pollutants in the water being discharged. Plaintiffs maintain that it is the discharge of "any pollutant" that triggers the requirement for a National Pollutant Discharge Elimination System (NPDES) permit, not the discharge of a certain amount of pollutants. Thus, they argue that PPG's response on this point is immaterial to the issue of its liability for discharging pollutants without an NPDES permit.

Some of the seep locations have been given designations. For example, the Administrative Order identifies 18 seeps by name or designation. (Administrative Order at 4, Performance Obligation A (PADEP000006). The named seeps are located on the South Bench, on the Western Slope, and in the Drainage Ditch. (Id. Ex. B (PADEP000015). Other seeps lack a specific name or designation. Some of the unnamed seeps were discovered after the issuance of the Administrative Order. (Shaw Rule 30(b)(6) Dep. at 52–55;⁸ Revised Treatment Plan Report at 5 (PPG0050749).

PPG responds that that unnamed seeps identified in the South Bench area after the issuance of the Administrative Order have been "tied" into the Interim Abatement System for collection and treatment and other unnamed seeps identified after the issuance of the Order are being passively treated. (Shaw Rule 30(b)(6)...