PennEnvironment v. PPG Indus., Inc.

• Citation: 23 F.Supp.3d 553
• Decision Date: 28 May 2014
• Docket Number: 13–1396,14–229.,Member Cases Nos. 12–527,Civil Action No. 12–342.,13–1395
• 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

23 F.Supp.3d 553

PENNENVIRONMENT and Sierra Club, Plaintiffs

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

Civil Action No. 12–342.

Member Cases Nos. 12–527

13–1395

13–1396

14–229.

United States District Court, W.D. Pennsylvania.

Filed May 28, 2014.

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, Jamie A. Edwards, Paul K. Stockman, McGuireWoods LLP, Pittsburgh, PA, Anthony J. Vigilante, Paletta & Pagliari, Lower Burrell, PA, Elizabeth M. Rothenberg, McGuireWoods LLP, Jacksonville, FL, 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 summary judgment on the issue of Plaintiffs' standing, filed by Plaintiffs and PPG. For the reasons that follow, Plaintiffs' motion for partial summary judgment 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. (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) (“Shaw Treatment Plan Report”) 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. (Treatment Plan Report at 1.)

In June 1994, the Pennsylvania Department of Environmental Protection (PADEP) conducted sampling and a survey of the streams in and around the Site. (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.” (ECF No. 119 Ex. 12.)

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;

b. 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;

c. 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.) Additionally, the sampling and monitoring are required to comply with the sample collection, preservation and laboratory analysis in 40 C.F.R. Part 136 (requirements for reports submitted under a National Pollutant Discharge Elimination System (“NPDES”)). (Id. at PADEP6 ¶ A.)

Per the 2009 Administrative Order, PPG has been submitting these Monthly Progress Reports to PADEP, with the sampling and monitoring results, beginning in April 2009. (PPG App. Ex. B.)⁵

Interim Abatement System and Treatment Plan

On July 2, 2009, PADEP approved PPG's revised interim abatement plan and issued an Addendum to the Administrative Order. (ECF No. 119 Ex. 16 at PADEP 16–19). Attachment A to the Addendum required that the interim system comply with several additional requirements, including a prohibition on the discharge of untreated or ineffectively treated wastewaters. (Id. at PADEP 18). The Addendum imposed monitoring requirements for ten parameters: flow, suspended solids (“TSS”), oil and grease, aluminum, arsenic, iron, lead, chromium, antimony, and pH. (Id. ) The Addendum also imposed effluent limitations for three of those parameters: TSS, oil and grease, and pH, while the other parameters were required to be monitored and reported. The results of the sampling and monitoring are required to be submitted to PADEP (both Chief of the Operations Section and Chief of the Permits Section in the Water Management Program) within 28 days following the end of the calendar month on the enclosed form, a discharge monitoring report (“DMR”). (Id. )

PPG's interim abatement system under the Administrative Order and Addendum became operational in 2010. (Shaw Treatment Plan Report at 6.) PPG collects flow from several seeps, as well as the flow through the drainage ditch, and directs it to an interim treatment system (also called the interim abatement system or “IAS”), where the pH is adjusted. (Id. )

Plaintiffs state that some seepage water are directed to the Interim Treatment System and treated for pH before being discharged through Outfall 001, but that additional seeps remain uncollected. (Treatment Plan Report at 46; Kilburg Dep. at 39:1–20.)⁶

Pursuant to the monitoring requirements of the July 2009 Addendum, PPG monitors the discharges from the treatment system for the presence of aluminum, arsenic, iron, lead, chromium, and antimony, all of which, Plaintiffs note, are consistently documented in the discharges. (ECF No. 119 Ex. 19 at PADEP2937–2972). PPG responds that PENTOXSD modeling showed that applicable Pennsylvania Water Quality Standards in the Allegheny River were fully protected using conservative estimates of aluminum, iron, lead, chromium, and antimony concentrations in the discharges from the interim treatment system on the Site. (Shaw...