PennEnvironment v. PPG Indus., Inc.

587 F.Supp.3d 286

PENNENVIRONMENT and Sierra Club, Plaintiffs,

v.PPG INDUSTRIES, INC., Defendant.

Civil Action No. 12-342

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

United States District Court, W.D. Pennsylvania.

Signed February 23, 2022

Carolyn Smith Pravlik, Patrick A. Sheldon, Michael L. Huang, Pro Hac Vice, Nicholas F. Soares, Terris, Pravlik & Millian, LLP, Washington, DC, Tina Miller, Reisinger Comber & Miller, LLC, Pittsburgh, PA, for Plaintiffs.

Alana E. Fortna, Andrew C. DeGory, Christina Manfredi McKinley, Richard S. Wiedman, Babst, Calland, Clements & Zomnir, P.C., Jessica Sharrow Thompson, PPG Industries, Inc., Paul D. Steinman, Cozen O'Connor, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

PATRICIA L. DODGE, United States Magistrate Judge

Plaintiffs PennEnvironment and Sierra Club bring these citizen suits against Defendant PPG Industries, Inc. ("PPG") under 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). In their lawsuits, they seek 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 near the Site, and contamination of groundwater associated with the Site.¹

Pending before the Court are two motions: PPG's Motion for Summary Judgment on Mootness Grounds (ECF No. 480) and Plaintiffs’ Fifth Motion for Partial Summary Judgment (ECF No. 476). For the reasons below, PPG's motion will be denied and Plaintiffs’ motion will be granted.

I. Relevant Procedural History

On January 13, 2012, Plaintiffs gave notice of their intent to file suit to the Administrator of the Environmental Protection Agency (EPA), the Pennsylvania Department of Environmental Protection (PADEP) and Defendants as required by the CWA, CSL and RCRA. 33 U.S.C. § 1365(b)(1)(A) ; 35 P.S. § 691.601(e) ; 42 U.S.C. § 6972(b)(2)(A). (CWA Compl. ¶ 4 & Ex. 1; RCRA Compl. ¶ 4 & Ex. 1.) Plaintiffs filed this action under the CWA and the CSL. Later, additional actions were commenced under the CWA, CSL and RCRA and were eventually consolidated at this case.

On December 10, 2014, the Court granted Plaintiffs’ motion for a preliminary injunction to the extent that it sought an order requiring PPG to apply for a National Pollutant Discharge Elimination System ("NPDES") Permit. PPG was ordered to apply for a permit by March 31, 2015 (ECF No. 92). On April 7, 2015, PPG notified the Court that it had submitted its NPDES permit application and that the PADEP had accepted it (ECF No. 212).

The Court granted Plaintiffs’ Third Partial Motion for Summary Judgment in August 2015. The Court found that PPG was liable under the CWA and CSL given the evidence that PPG was discharging waste without a NPDES permit.² Further, the Court determined that PPG was violating a 2009 Administrative Order issued by the PADEP as to Total Suspended Solids, failing to address contamination and creating an interim system that treated uncontaminated storm water in open trenches rather than pipes. PPG was also held liable under RCRA because its contamination "may present an imminent and substantial endangerment to health or the environment." (ECF No. 228).

On April 2, 2019, PPG and the PADEP entered into a Consent Order and Agreement ("2019 COA") that set forth compliance obligations and what is described as a civil penalty. (ECF No. 409-1.) The 2019 COA required PADEP's issuance of a final NPDES permit, PPG's compliance with the final NPDES permit, and the payment of stipulated penalties for noncompliance. Further, the 2019 COA required PPG to pay $1.2 million "in settlement of [PADEP's] claim for civil penalties for violations of The Clean Streams Law, including the Department's delegated NPDES program authority under the federal Clean Water Act, and other applicable law ... occurring prior to the entry of this Consent Order and Agreement in accordance with the applicable statute of limitations." (id. at 31, § VII, ¶ 10). PPG timely paid this amount in full on May 16, 2019. (ECF No. 481 at 2.) As discussed in more detail below, the PADEP issued to PPG a final NPDES permit with an effective date of January 1, 2020 in accordance with the terms of the 2019 COA.

In October 2019, this matter was referred to Magistrate Judge Lenihan in order to conduct a judicial settlement conference, and multiple sessions took place thereafter. As a result of these efforts, the parties filed a joint motion for entry of a consent order March 22, 2021 (ECF No. 467), which was granted (ECF No. 468). Under the terms of the consent order, all claims were resolved except: (i) PPG's liability, if any, for a civil penalty under the Clean Water Act, as well as the amount of any such penalty, and (ii) PPG's liability, if any, for Plaintiffs’ litigation costs, including attorneys’ fees and expert witness’ fees under 33 U.S.C. § 1365(d) and 42 U.S.C. § 6972(e). The Court retains jurisdiction to resolve these issues. (ECF No. 468 ¶¶ 11, 28-29.)

On June 1, 2021, PPG filed a motion for summary judgment on mootness grounds (ECF No. 480) and Plaintiffs moved for partial summary judgment on the issue of PPG's CWA liability between August 31, 2015 and December 31, 2019 (ECF No. 476). Both motions have been fully briefed.

II. Relevant Background Facts

The Site includes two former PPG waste material disposal areas known as the Solid Waste Disposal Area ("SWDA") and the Slurry Lagoon Area ("SLA"). Leachate and seeps from the SLA and the SWDA flow/seep out at various locations of the Site and then run off and migrate into the Allegheny River and Glade Run. (Defendant's Concise Statement of Material Facts ("DCSMF") ¶¶ 2-3.)³

From 1949 until 1970, PPG used parts of the Site to dispose of glass polishing slurry waste and solid waste from its former flat glass manufacturing facility that was across the river in Ford City, Pennsylvania. PPG deposited the slurry waste in three slurry lagoons created in an area on the Site that PPG formerly used as a sandstone quarry. The SLA portion of the Site is comprised of about 77 acres on the western part of the property. (Plaintiffs’ Concise Statement of Undisputed Material Facts ("PCSUMF") ¶¶ 1-2.)⁴ The SLA is bordered by Route 128 to the north, Glade Run to the west, and the SWDA to the east. The Allegheny River and a railroad track lie to the south of both the SLA and SWDA. On its southern side, the SLA slopes steeply from the top of the slurry lagoon to the Buffalo and Pittsburgh Railroad tracks that run parallel to the Allegheny River. On its western side, the SLA slopes to Glade Run. This slope is known as the Western Slope. A stream which PPG calls the Drainage Ditch runs between the SLA and SWDA. (Id. ¶ 3.)

A. Groundwater and Seep Discharge

Groundwater in the SLA originates from two sources: upgradient groundwater and infiltrating precipitation. Once this groundwater enters the SLA, it encounters PPG's waste and becomes contaminated with the contaminants in the waste. This contaminated groundwater is sometimes call leachate. Fractures within the weakly cemented SLA waste provide pathways for the contaminated groundwater to travel. Some of the contaminated groundwater eventually emerges from the waste onto the land surface at locations known as seeps. The seep water is contaminated with metals, including aluminum, antimony, arsenic, chromium, iron, and lead. PPG's discharges also regularly have a high pH. (PCSUMF ¶¶ 4-6.)

The parties disagree regarding certain factual issues. PPG contends that the presence of metals in these seeps is de minimis and does not represent an unacceptable risk to human health and the environment. It also asserts that Plaintiffs resolved all claims of any kind related to the presence of metals. Further, PPG asserts, Plaintiffs withdrew their allegations that metals were not appropriately addressed by the final NPDES permit in exchange for a minor clarification about the scope of PPT's reconnaissance of the SLA to seek out and identify high pH seeps, thus ensuring they are incorporated and addressed by the final Site remedy. (PPG's Reply to Plaintiffs’ Concise Statement of Material Facts ("DRPCSMF") ¶ 6.)⁵ Plaintiffs counter that because the CWA forbids the discharge of "any pollutant" without a permit and because PPG had no permit authorizing its discharges until December 31, 2019, the amount of any particular metal in its discharges is immaterial to PPG's liability. They note that PPG's assertion that the seeps may be remediated in the future is irrelevant to the fact that the seeps were not eliminated during the time period in question. (Plaintiffs’ Reply in Support of Their Concise Statement of Material Facts ("PRSCSMF") ¶ 6.)⁶

According to Plaintiffs, once the contaminated groundwater emerges from the seeps, it continues to flow or is conveyed to the waters of the United States, including the Allegheny River, Glade Run, and their associated wetlands. They contend that this also occurred during the period covered by this Court's earlier award of summary judgment (from April 16, 1973 through August 31, 2015) for the same type of violations. These seeps discharge from all sides of the SLA. On the southern side of the SLA, the contaminated groundwater flows into a drainage channel located north of and parallel to the railroad tracks (Railroad Ditch). From the Railroad Ditch, the contaminated water flows through culverts underneath the railroad tracks into the waters of the United States: the Allegheny River and its adjacent wetlands. On the eastern side of the SLA, the contaminated groundwater discharges into the Drainage Ditch, which in turn discharges to the Railroad Ditch and waters of...