PENNENVIRONMENT et al v. PPG INDUSTRIES, INC et al
Filing
162
MEMORANDUM OPINION & ORDER denying 137 Motion for Summary Judgment on Standing filed by PPG INDUSTRIES, INC., granting 116 Motion for Partial Summary Judgment and Declaratory Judgment on Article III Standing filed by PENNENVIRONMENT, SIERRA CLUB. Signed by Magistrate Judge Robert C. Mitchell on 5/28/2014. (spc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PENNENVIRONMENT and SIERRA CLUB,
Plaintiffs,
)
)
)
vs.
)
)
PPG INDUSTRIES, INC., BOROUGH OF FORD )
CITY, and BUFFALO & PITTSBURGH
)
RAILROAD, INC.,
)
Defendants.
)
Civil Action No. 12-342
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 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.
1
As explained infra, Plaintiffs have indicated that they are not pursuing claims against or seeking
specific relief from Ford City or BPRI, but have joined these defendants as indispensable parties.
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
2
Civ. A. No. 12-342, ECF No. 1.
Pls.’ App. (ECF No. 119) Ex. 13.
4
ECF No. 119 Ex. 22.
3
2
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
3
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 CFR 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
4
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 PADEP16-19). 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
PADEP18). 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
5
6
ECF No. 141.
Pls.’ Resp. App. (ECF No. 147) Ex. 1; Ex. 18.
5
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
Treatment Plan Report at 50-51.)7
PPG states that it has submitted the required monthly DMRs to PADEP, containing the
required sampling and monitoring results, beginning in February 2010 (containing January 2010
data as the treatment and collection system was installed at the end of January). (ECF No. 141
Ex. D.) Plaintiffs dispute this assertion on the basis that the monthly DMRs contain 268
discharge violations, which they contend are material to issues of PPG’s liability.
PPG states that the monthly DMRs contain exactly the same information as the exemplar
DMR provided by the United States Environmental Protection Agency (“EPA”) under the
NPDES permits program. (ECF No. 141 Ex. E.) Plaintiffs dispute this statement, contending
that the exemplar DMR resembles the DMRs submitted by PPG to PADEP in format only and
that the DMRs that PPG is required to submit do not include all of the information that would be
required on DMRs submitted pursuant to an NPDES permit. For example, PPG’s DMRs pertain
only to Outfall 001, require monitoring for only ten parameters and include effluent limitations
for only three parameters. Furthermore, a DMR submitted pursuant to an NPDES permit
provides information regarding the level of pollutants in a discharge to the applicable receiving
water. The data submitted by PPG in its DMRs reflects the level of pollutants at the point of
7
PPG Resp. App. (ECF No. 144) Ex A.
6
discharge from the interim abatement system via Outfall 001, not the point of discharge to the
Allegheny River. For example, Outfall 001 feeds culverts at the level of the railroad tracks and
does not discharge directly to the Allegheny River. (Shaw Treatment Plan Report, App. M.)8 The
pH at the culverts prior to discharge to the Allegheny River is considerably higher than the pH
recorded at Outfall 001. (Pls.’ Second Supp. Notice Letter, Attach. 6.)9 Moreover, the
requirements of the Administrative Order were issued without the procedures required for the
application and grant of an NPDES permit, which mandate the disclosure of additional
information not part of the DMRs and afford opportunities for public participation.
PPG conducted sampling of sediments from the Allegheny River, Glade Run, and the
drainage ditch/Stream 2 on March 27-28, 2012. (Sediment Sample Locations, Key
Environmental, Inc. at PPG004028).10 Analysis of the samples demonstrated the presence of
arsenic, cadmium, copper, iron, lead, and manganese. TestAmerica Analytical Report, Job
Number: 180-9352-1, PPG Ford City Site (April 19, 2012) at PPG003799-3838).11 PPG notes
that Plaintiffs’ exhibit is dated March 25, 2013 (not March 25, 2012), which indicates that it was
prepared almost a year after the April 19, 2012 Test Results. Thus, PPG claims that Plaintiffs
have not shown that the Test Results provide sediment sample results from the Allegheny River,
Glade Run, and the Drainage Ditch. Nevertheless, as Plaintiffs observe, PPG has not denied that
the sediment samples reflect the sampling locations analyzed in the Report and they contend that
PPG’s counsel represented that the March 25, 2013 map represented the locations of the samples
in the April 19, 2012 report. (Pls.’ Reply App. Ex. 3.)12
8
ECF No. 147 Ex. 1.
ECF No. 105.
10
ECF No. 119 Ex. 20.
11
ECF No. 119 Ex. 21.
12
ECF No. 155.
9
7
In December 2012, PPG submitted a Treatment Plan Report under the Administrative
Order, which discussed remedial alternatives and the selection of a proposed remedial alternative
involving limited enhancements to the current interim abatement system. (Shaw Treatment Plan
Report at 87-89.)13 Plaintiffs note that the Treatment Plan Report reported that leachate
discharged from the seeps has a pH of 9.0-12.0 standard units and contains aluminum, arsenic,
chromium, iron, lead, and antimony, all of which are present in the waste material in the SLA.
(Id. at 39.)
Plaintiff Organizations and Members
Plaintiff PennEnvironment is a non-profit organization in the State of Pennsylvania
whose mission is to protect and preserve Pennsylvania’s environment through education,
research, lobbying, litigation, and citizen organizing. (Masur Aff. ¶¶ 3-4.)14 PennEnvironment
has approximately 15,000 members who make financial contributions, while approximately
100,000 individuals subscribe to its e-mail action network. (Id.) David Masur has served as the
director of PennEnvironment since 2002. (Masur Aff. ¶ 2.)
Members of PennEnvironment live in and around Ford City, Pennsylvania, and in the
vicinity of the Allegheny River. Members also recreate in and around the Allegheny River.
(Masur Aff. ¶ 8.)
PennEnvironment engages citizens to assist in lobbying efforts and is involved in
litigation to protect the State’s waterways. (Masur Aff. ¶¶ 6-7.) PennEnvironment monitors
pollution and water quality in the State and sends out email updates to members biweekly.
(Masur Dep. at 24.)15 PennEnvironment also issues reports on these topics, including a 2012
13
ECF No. 119 Ex. 22.
ECF No. 119 Ex. 23.
15
ECF No. 119 Ex. 29. Because the parties have cited different portions of Mr. Masur’s
14
8
report, “Wasting Our Waterways 2012: Toxic Industrial Pollution and the Unfulfilled Promise of
the Clean Water Act.” (Masur Aff. ¶ 9.) These efforts depend on accurate and complete
information about water quality. (Masur Aff. ¶ 11; Masur Dep. at 92-93.)
PennEnvironment states that PPG’s failure to obtain an NPDES permit for its discharges
from the Site deprives it of complete and accurate information and an opportunity for public
participation in efforts to protect the quality of the Allegheny River, foreclosing a mechanism
“by which the public can both be educated and engaged, use data, and take action to try and
clean up the river.” (Masur Dep. at 92; see also Masur Aff. ¶ 11.)
PPG responds that Mr. Masur admitted that, prior to the commencement of this suit,
PennEnvironment did not engage any of its members in a campaign or lobbying efforts on “how
to get their voices heard” regarding the Site, nor has PennEnvironment ever lobbied PADEP or
any other authority regarding the Site. (Masur Dep. at 37:15-25, 38:1-21, 39:6-13.)16 Plaintiffs
state that Mr. Masur testified that PennEnvironment “engage[s] [its] members around broader
issues” related to the case. (Masur Dep. at 38:8-10.) They also indicate that PennEnvironment
and the Sierra Club submitted comments to PADEP regarding the inadequacy of PPG’s
Treatment Plan Report. (Pravlik Letter Mar. 27, 2013.)17 And they reiterate that the information
submitted by PPG to PADEP is not equivalent to the information that would be available
pursuant to the application for and issuance of an NPDES permit.
PPG states that at no time has PennEnvironment ever researched the Site through
PADEP’s public databases or requested, formally or informally, PPG’s monthly progress reports
or DMRs submitted to PADEP. (Masur Dep. at 36:17-25, 37:1-2, 40:21-25, 41:1-10, 88:18-20,
deposition, he appears five times in the record.
16
ECF No. 141 Ex. J.
17
ECF No. 147 Ex. 2.
9
89:19-25, 90:1-3.) PennEnvironment disputes this claim, stating that it and Sierra Club, through
their counsel, have requested and obtained these materials from PADEP. (Pravlik Aff. ¶ 8.)18
PPG notes that PennEnvironment does not report on all water quality issues in biweekly
updates to its e-mail subscriber list (which is broader than the organization’s actual members)
and decides which issues to report based on waterways that PennEnvironment’s local members
“care deeply about.” (Masur Dep. at 25:22-25, 26:3-12, 28:10-24.)19 PennEnvironment has never
been unable to send out an e-mail update because of lack of information specific to the Site. (Id.
at 95:1-9.) For the referenced “Wasting Our Waterways 2012: Toxic Industrial Pollution and the
Unfulfilled Promise of the Clean Water Act” report, Mr. Masur admitted that the information for
this report did not come from NPDES permit reporting requirements, but rather from the Toxic
Release Inventory (TRI), which he acknowledged has certain “threshold requirements for
reporting” that “vary based on the emission and, potentially, how toxic it is.” (Id. at 97:23-25,
98:1-7, 99:4-17.)
PPG states that PennEnvironment first circulated to its members information regarding
the Site in a press release distributed after this lawsuit was first filed in March 2012. (Masur Dep.
at 45:20-25, 46:1-25, 47:1-12;20 Masur Aff. ¶ 9.) Plaintiffs respond that the press release was
distributed on January 4, 2012, three months prior to the filing of the lawsuit, on March 30, 2012.
(Masur Dep. at 45:20-46:11.) PPG notes that PennEnvironment has been able to educate its
members on environmental issues despite their lack of acquired information on the Site. (Masur
Dep. at 95:1-9, 24-25, 96:1-3, 15-19, 97:2-8.)
Plaintiffs reply that they have been unable to provide their members with “accurate and
18
ECF No. 147 Ex. 16.
ECF No. 144 Ex. B.
20
ECF No. 141 Ex. J.
19
10
complete information” about PPG’s discharges because it did not obtain an NPDES permit.
(Masur Aff. ¶ 11; Masur Dep. at 83:12-84:22, 85:8-22; 90:4-15.)
PPG states that PennEnvironment first became aware of the Site in approximately 2008
from local news outlets, one being the Pittsburgh Post-Gazette. (Masur Dep. at 42:24-25; 43:118.) Plaintiffs emphasize that the organization was aware of the Site prior to discussions
regarding the lawsuit. (Masur Dep. at 60:22-23.)
PPG notes that PennEnvironment has admitted it had “no plans” to file a lawsuit against
PPG with respect to the Site until it was contacted by the law firm of Terris Pravlik and Millian,
LLP (“TPM”). (Masur Dep. at 60:19-25, 61:1-5.)21 Plaintiffs respond that, as early as February
1, 2010, Masur spoke with TPM attorney Alicia Alcorn regarding PennEnvironment’s interest in
filing citizen suits and his assessment that enforcement actions could be brought for sites in
western Pennsylvania. (Alcorn Aff. ¶ 4.)22
The Retainer Agreement between PennEnvironment and TPM states that
PennEnvironment will not be liable for any of TPM’s fees or expenses incurred in connection
with this suit. (PennEnvironment Retainer Agreement ¶¶ 2-3.)23 The Retainer Agreement further
provides that the PennEnvironment “shall make all good-faith efforts to assist the Firm [TPM] in
locating individuals who are willing to participate in the lawsuit in order to satisfy standing
requirements.” (Id. ¶ 8.)
PPG notes that PennEnvironment did not have any knowledge of any individual members
who claimed to be harmed or injured by the pollution from the Site prior to the filing of the
Complaints or before it sent the Notice of Intent to Sue Letter to PPG. (Masur Dep. at 111:9-13,
21
ECF No. 141 Ex. J.
ECF No. 147 Ex. 17.
23
ECF No. 141 Ex. N.
22
11
113:2-6.)24 After suit was filed, PennEnvironment sent two e-mails, the first dated November
13, 2012 and the second dated March 11, 2013, in which it requested “members who want to
assist us” with regard to the Site. (ECF No. 141 Ex. O; Masur Dep. at 26:13-25, 27:1-5.)
Plaintiffs respond that it is not material whether the members were identified when suit
was filed. TPM has previously served as counsel to organizations in CWA and RCRA suits who
filed cases prior to determining specific members who were willing to participate. (Pravlik Aff.
¶¶ 3-5.)
PPG states that, as to the organization itself, Mr. Masur testified that the only “harm” to
the organization is that its interests in monitoring polluters and collecting information are harmed
by PPG’s failure to obtain an NPDES permit for the discharges from the Site and PPG’s failure
to following the monitoring and reporting obligations in CWA permits. (Masur Dep. at 83:21-25,
84:1-7, 85:8-22; see also Masur Aff. ¶ 11.) Plaintiffs point out that Mr. Masur testified that, as
stated in his affidavit, PennEnvironment’s interest in obtaining accurate and complete
information about water quality to report to its members and to pursue organizing efforts, and
legislative and litigation efforts, is harmed by PPG’s failure to obtain an NPDES permit and
comply with the requirements of the CWA. (Masur Dep. at 83:12-84:22, 85:8-22, 90:4-15;
Masur Aff. ¶ 11.) Mr. Masur further testified that PPG’s failure to do so has deprived
PennEnvironment of opportunities for public education and advocacy through participation in
the permitting process as required under the CWA and state regulations. (Masur Dep. at 92:193:23.)25
Plaintiff Sierra Club is a national non-profit organization dedicated to exploring,
enjoying, and protecting the wild places of the Earth; to practicing and promoting the responsible
24
25
ECF No. 141 Ex. J.
ECF No. 147 Ex. 21.
12
use of the Earth’s ecosystems and resources; to educating and enlisting humanity to protect and
restore the quality of the natural and human environment; and to using all lawful means to carry
out these objectives. The Sierra Club has approximately 2.1 million members and supporters.
(Au Aff. ¶ 3.)26
The Pennsylvania Chapter of the Sierra Club is a subunit of the Sierra Club, with
approximately 24,000 members. (Au Aff. ¶ 4.) Thomas Y. Au has served as Conservation Chair
of the Pennsylvania chapter since 2008. (Au Aff. ¶ 2.)
Sierra Club states that members of the Pennsylvania Chapter live, exercise, work, raise
children, farm, garden, fish, bird watch, hike, camp, and recreate on a regular basis in western
Pennsylvania and along the Allegheny River, including the stretch of the river near the Site and
the areas surrounding the Site. (Au Aff. ¶ 6.) Many members are concerned about the
detrimental effects of pollution from the Site on the Allegheny River. (Au Aff. ¶ 9.)
PPG responds that, at his Rule 30(b)(6) deposition, Mr. Au could not identify any
individual member of the Sierra Club who claimed to have sustained harm from the Site at the
time the Complaints were filed or before it sent the Notice of Intent to Sue Letter to PPG. (Au
30(b)(6) Dep. at 139:6-11, 16-25, 140:1-25, 141:1-3.)27 It was not until a year after this case was
filed that Sierra Club sent an email to its members requesting the participation of members who
were “willing and able to assist the Sierra Club” with this litigation in order to satisfy “the legal
standard of ‘standing.’” (ECF No. 141 Ex. L at 2, 3.) Plaintiffs respond that the material issue is
whether the injury existed, not whether Mr. Au could identify individual Sierra Club members
26
ECF No. 119 Ex. 24.
ECF No. 141 Ex. G. Mr. Au was deposed twice: on September 25, 2013, he was deposed on
the issue of standing (“Au Standing Dep.”). Then on September 26, 2013, he provided a Rule
30(b)(6) deposition on behalf of the Sierra Club (“Au 30(b)(6) Dep.”). Because the parties have
referred to different excerpts from these two depositions in their cross-motions and appendixes
thereto, Mr. Au appears in five separate places in the record.
27
13
who were harmed on a particular date.
The Sierra Club conducts research, advocacy, public education, and litigation regarding
water quality issues in Pennsylvania. The Sierra Club has established a Water Issues Committee
that publishes a newsletter five or six times a year to provide information to members about
water quality issues in Pennsylvania. (Au Aff. ¶¶ 5, 7.) Mr. Au states that the Sierra Club’s
research, advocacy, and public education efforts require access to accurate information about
water quality in Pennsylvania, including information disclosed by dischargers pursuant to their
applications for and compliance with discharge permits. (Au. Aff. ¶ 10.) Without the information
that it could obtain from PPG’s application for and operation under an NPDES permit and
related monitoring and reporting, the Sierra Club cannot provide its members with complete
information about the quality of waterways in the vicinity of the Site, including the Allegheny
River. (Au Aff. ¶ 10.)
PPG responds that the Sierra Club has not engaged in any advocacy with respect to the
Site before or after this suit was filed in March 2012 except for a meeting in PADEP in June
of 2013. (Au Standing Dep. at 45:25, 46:1-25, 47:1.)28 Mr. Au testified that it was not until after
an executive committee meeting on September 24, 2011 that the Sierra Club decided to take any
action regarding the Site after it was approached by PennEnvironment. He indicated that he
attended a Pennsylvania Chapter of the Sierra Club executive committee meeting on September
24, 2011 and that recorded minutes of that meeting were prepared. (Au 30(b)(6) Dep. at 149:912, 150:8-10, 15-19, 152:3-11;29 ECF No. 141 Ex. I.) It was not until after this meeting that
Sierra Club decided to take any action regarding the Site after it was approached by
28
29
ECF No. 141 Ex. H.
ECF No. 141 Ex. G.
14
PennEnvironment and TPM. (Au 30(b)(6) Dep. at 109:18-25; see also Masur Dep. at 60:5-25.30)
The minutes from the meeting indicate that:
At a former [PPG] factory in Ford City Armstrong County, a lagoon in which the
company dumped glass polishing waste is leaking toxics into the Allegheny
River. The law firm of Terris, Pravlik, and Millian plans to sue PPG to force it to
clean up the lagoon and pay civil penalties with attorney fees. The Sierra Club
has been invited to join the suit for free.
(ECF No. 141 Ex. I at SC-PA000046.) See Au 30(b)(6) Dep. at 154:1-24, 155:1-25, 157:8-25,
158:1-6. Plaintiffs indicate that TPM frequently agrees that plaintiff organizations will not be
responsible for costs and expenses in CWA and RCRA suits in order to reduce financial barriers
to bringing them. (Pravlik Aff. ¶ 6.)
PPG states that, at no time has the Pennsylvania Chapter of the Sierra Club ever
requested or obtained any records or PPG’s monthly progress reports or discharge monitoring
reports from PADEP regarding the Site, despite being aware that PPG has been submitting these
reports on the Site to PADEP regarding its seep sampling. (Au Standing Dep. at 36:5-13, 56:2-8,
59:25, 60:1-4, 63:14-25, 64:1-2.)31 However, Mr. Au testified that the Sierra Club was aware
that PPG had been submitting monthly progress reports to PADEP regarding its seep sampling.
(Id. at 55:24-25, 56:1-5, 58:2-6, 21-23, 59:5-24.)
Further, the information contained in the Sierra Club’s newsletters on water quality issues
is solicited “from members and outside experts or parties who might have an interest” and
“academic studies, publication, government sources, newspaper articles, and activities from our
members.” See Au Standing Dep. at 30:2-12; 50:11-16.32 The Sierra Club does not report on all
contaminated sites in Pennsylvania affecting water quality in these newsletters and decides
30
ECF No. 141 Ex. J.
ECF No. 141 Ex. H.
32
ECF No. 144 Ex. C.
31
15
which ones to include in the newsletters based on “items that are of public interest that are
chronicled in newspapers or where a government agency has issued a report or where there’s a
threat that’s gone on notice.” (Id. at 41:11-20.) The Sierra Club has never even attempted to
include information on the Site in a newsletter. (Id. at 53:3-6.) With respect to particular sites
that present water quality issues, the Sierra Club’s main ways in engaging in advocacy are
funding studies and working with PADEP. (Id. at 45:18-24.) The Sierra Club has not attempted
to meet with PADEP or engage in any other types of advocacy regarding the Site prior to this
litigation. (Id. at 46:17-25; 47:1.)
Plaintiffs reply that both the Sierra Club and PennEnvironment have engaged in advocacy
regarding the Site by submitting comments to PADEP regarding the inadequacy of PPG’s
Treatment Plan Report. (Pravlik Letter Mar. 27, 2013.) They have also requested and obtained
materials concerning the Site submitted by PPG to PADEP. (Pravlik Aff. ¶ 8.) They indicate
that they have been injured in their ability to obtain full and complete information about PPG’s
discharges from the Site and to provide input into the permitting process as a result of PPG’s
failure to apply for and obtain an NPDES permit. Although Mr. Au testified in his individual
capacity that he could not recall whether Sierra Club has attempted to include information
regarding the Site in one of its newsletters (Au Standing Dep. at 53:3-6), Plaintiffs maintain that
whether Sierra Club researched the Site through the PADEP website or requested materials from
PADEP or attempted to include the information it did have in newsletters is not material to the
issue of whether it has been injured because the information submitted by PPG to PADEP is not
equivalent to the information that would be available pursuant to an application for and issuance
of an NPDES permit.
In January, 2009, the Sierra Club posted on its website information regarding the Site
16
based on an article written by Don Hopey on the results of a water quality research project led by
Dr. Conrad Volz. (Au 30(b)(6) Dep. at 109:11-17.)33 PPG states that the Sierra Club has not
engaged in any advocacy with respect to the Site before or after this suit was filed in March 2012
except for a meeting in PADEP in June of 2013. (Au Standing Dep. at 45:25; 46:1-25; 47:1.)34
Plaintiffs respond that the Sierra Club publicized the results of a study conducted on the Site.
Sierra Club also participated in the filing of five Complaints regarding PPG’s discharges from
the Site. The Sierra Club, along with PennEnvironment, submitted comments to PADEP
regarding the inadequacy of PPG’s Treatment Plan Report. (Pravlik Letter Mar. 27, 2013.)
PPG indicates that, when Mr. Au was questioned about TPM’s direct solicitation of the
Sierra Club, he made the following admission:
Q. So with respect to those discussions you were approached about joining a suit?
The Sierra Club didn’t just go out and retain counsel to pursue a case, you were
approached, first to join a suit?
A. No lawsuit had been filed at the time.
Q. That’s fine, -A. Yeah.
Q. – but the fact is the Sierra Club didn’t come to its own conclusion to contact
the Terris firm, you were asked to join a contemplated lawsuit.
A. Yes, that’s correct.
(Au 30(b)(6) Dep. at 153:21-25, 154:1-8.)35
PPG states that the minutes recite that Sierra Club demanded the condition that it would
only agree to be part of this lawsuit if TPM agreed to defend and hold harmless any individual
plaintiff involved in other litigation as a result of the PPG litigation. (Au 30(b)(6) Dep. at 155:133
ECF No. 147 Ex. 19.
ECF No. 141 Ex. H.
35
ECF No. 141 Ex. G.
34
17
25, 157:8-25, 158:1-6.) Plaintiffs respond that the meeting minutes demonstrate that a member
of the Sierra Club Executive Committee moved to add a provision to the motion to approve the
Chapter’s participation in litigation related to the Site that would require an indemnification
agreement with counsel. (ECF No. 147 Ex. 3.) The Executive Committee’s action required final
approval by Sierra Club’s national organization.
The Retainer Agreement entered into between the Sierra Club and TPM signed on
October 26, 2011 contains an indemnification provision stating that “[TPM] agrees to defend,
indemnify, and hold harmless from and against claims and damages levied against any individual
member of [the Sierra Club] who is named as a plaintiff in connection with litigation which is
the subject of this retainer agreement.” (ECF No. 141 Ex. K ¶ 12.) The Retainer Agreement also
provides that Sierra Club will not be liable for any of TPM’s fees or expenses incurred in
connection with this suit. (Id. ¶¶ 2-3.) It further states that Sierra Club “shall make all good-faith
efforts to assist the Firm in locating individuals who are willing to participate in the lawsuit in
order to satisfy standing requirements.” (Id. ¶ 8.) Plaintiffs note that TPM has represented
Sierra Club chapters in previous citizen suits and has previously represented the Public Interest
Research Group of Pennsylvania, the predecessor to PennEnvironment. (ECF No. 147 Ex. 8.)
Mr. Masur approached Mr. Au on July 29, 2011 and introduced him to a TPM attorney. (ECF
No. 147 Exs. 9, 10.)
PPG contends that, after the conclusion of Mr. Au’s standing deposition on September
25, 2013, at the start of his Rule 30(b)(6) deposition on September 26, 2013, he attempted to add
to his individual standing testimony by stating that Clean Water Act requires separate and
different monitoring requirements than those contained in the 2009 Administrative Order
because the monitoring requirements are contained in an issued permit and would be reported as
18
discharge monitoring reports. (Au 30(b)(6) Dep. at 12:23-25; 13:1-5, 17-23.)36 Plaintiffs respond
that the fact that the CWA imposes separate and different requirements than those in the
Administrative Order is material to their injuries.
Thomas Moser
For over 40 years, Thomas Moser has been a resident of Murrysville, Pennsylvania,
which is approximately 20 miles south of the Site. (Moser Am. Aff. ¶ 1.)37 He has been a
member of the Sierra Club for over 10 years. (Id. ¶ 3.) Mr. Moser became a member of
PennEnvironment in the Spring of 2013, after learning about Sierra Club and
PennEnvironment’s lawsuit against PPG. (Id. ¶ 3.)
Mr. Moser has a Bachelor of Arts degree in physics, a Master of Science degree in
Engineering, a Master of Business Administration degree, and a Master of Science degree in
Information Technology Management. (Moser Am. Aff. ¶ 2; Moser Dep. at 14:1-9.38) As a
result of his science education and interest in conservation, Mr. Moser knows that pollution from
industrial sites has harmful effects on the environment, wildlife, and human health. (Moser Am.
Aff. ¶ 9.) Mr. Moser is aware that pollution in rivers can spread through an area when ingested
by fish, who are then eaten by waterfowl and other wildlife higher on the food chain. (Moser
Dep. at 23:9-24:25, 38:22-39:10, 39:25, 40:12-16, 51:15-52:25.)
Mr. Moser witnessed the effects of pollution in the Allegheny River in the 1950s. At that
time, he observed dead fish floating in the river and the absence of bald eagles in the area. Mr.
Moser is aware that at that time communities were concerned about using water downstream
from where sewage had been dumped into the river. He is concerned that the Allegheny River
36
ECF No. 141 Ex. G.
ECF No. 119 Ex. 26.
38
ECF No. 155 Ex. 7. Mr. Moser’s deposition excerpts appear in four different places in the
record.
37
19
could return to a similar condition if current pollution is not addressed. (Moser Am. Aff. ¶ 8.)
Mr. Moser is also concerned about the effects of pollution on the birds in the area,
including the bald eagle population, and worries that they may die or that their ability to
reproduce will be affected after consuming fish that have been contaminated by pollution in the
river. (Moser Am. Aff. ¶ 10.) He is also concerned about the health effects of consuming fish
caught in the river near the PPG Site. His enjoyment of bird watching would increase, and his
concern for the birds would be lessened, if pollution from the PPG Site ceased and was cleaned
up. Id.
Mr. Moser has enjoyed and recreated in and around the Allegheny River for most of his
life. He has a deep aesthetic appreciation for the river and enjoys birding, canoeing, boating, and
biking in and around the river. (Moser Am. Aff. ¶ 4.) PPG responds that Mr. Moser is a bird
watcher along various parts of the Allegheny River on the trail on the opposite side of the River
and north of the Site, while he has never attempted to look for any birds near the Site. (Moser
Dep. at 46:20-21, 47:18-23, 48:1-3, 49:6-23, 50:9-22, 51:7-14.)39 It also notes that Mr. Moser
used to bike a trail to the east of the Allegheny River that began at Schenley and traveled north
(on the opposite bank of the Allegheny River from the Site) to East Templeton, but that portion
of the trail is now closed. (Moser Dep. at 27:18-25.)40 PPG contends that Mr. Moser does not
regularly bike on the portion of the trail located across the River from the Site, by the Rosston
Marina – the first time he did was in May of 2013 when he visited the area after learning about
39
ECF No. 141 Ex. Q. PPG has argued that certain statements in the amended affidavits of Mr.
Moser, Mr. Klaput and Ms. Kovacovsky should be stricken or disregarded as “sham affidavits”
that were filed after and were inconsistent with their deposition testimony. This issue is
discussed below.
40
ECF No. 144 Ex. E.
20
the lawsuit. (Moser Dep. at 28:1-8, 30:20-25, 31:1-13.)41 While Mr. Moser canoes downstream
of the Site near Pittsburgh, he does not canoe or go boating in the vicinity of the Site and has no
future plans to do so. (Moser Dep. at 57:23-24, 58:1-24, 64:12-25, 65:1-3.)
Plaintiffs indicate that PPG misstates and omits Mr. Moser’s testimony regarding his
recreational activities in and around the Allegheny River, including in areas in the vicinity of the
Site. Contrary to PPG’s assertion, Mr. Moser testified that he has on previous occasions biked
along the trail that runs north along the Allegheny River through Ford City. (Moser Dep. at
31:14-20.)42 He also testified that he bird watches along trails in the vicinity of the Site and he
carries his bird-watching equipment while biking on the trail to the east of the Allegheny River
near the Site. (Id. at 50:12-25.) The portion of the trail near Schenley is downstream from the
Site.
PPG states that Mr. Moser had never heard of the Site prior to an e-mail sent by Peter
Wray with Sierra Club soliciting members to get involved in the lawsuit to assist with
establishing standing. (Moser Dep. at 22:3-11, 23:2-8; see also ECF No. 141 Ex. L.) Plaintiffs
point out that Mr. Moser testified that he has long been familiar with the vicinity of the Site and
has regularly used the Allegheny River near the Site and downstream from it. (Moser Am. Aff.
¶ 4; Moser Dep. at 50:4-25, 57:18-22, 58:25-59:3, 64:12-65:18.) He testified that he first learned
that the Site had been owned by PPG from Mr. Wray’s e-mail in the spring of 2013. (Id. at 22:314.)
PPG states that Mr. Moser had never seen or visited the Site, or the adjacent properties
until May or June of 2013, when after learning of this lawsuit, he visited the area of the
41
42
ECF No. 141 Ex. Q.
ECF No. 155 Ex. 7.
21
Allegheny River near the Site. (Moser Dep. at 28:1-8; 29:16-23; 30:4-17; 36:7-16; 37:17-20.)43
Plaintiffs note that Mr. Moser testified that he is familiar with the vicinity of the Site and has
regularly used the Allegheny River near the Site and downstream from it. (Moser Am. Aff. ¶ 4;
Moser Dep. at 50:4-25, 57:18-22, 58:25-59:3, 64:12-65:18.44)
PPG contends that Mr. Moser is “concerned about pollution from the Site entering the
Allegheny River,” but he could not identify any specific pollution coming from the Site he
believes needs to be cleaned up on the Allegheny River. (Moser Dep. at 39:15-18;45 Moser Am.
Aff. ¶ 9.) A few times each year Mr. Moser bikes a trail to the east of the Allegheny River that
begins at Schenley southwest of the Site and travels north on the opposite bank of the Allegheny
River from the Site in Ford City, PA, which is north of the Site and upstream on the Allegheny
River. (Moser Am. Aff. ¶ 4.) PPG contends that this is the closest vicinity to the Site in which
Mr. Moser has ever biked. (Moser Dep. at 30:20-25, 31:1-13.)
Plaintiffs respond that Mr. Moser stated that he bikes on the trail east of the Allegheny
River “approximately once or twice a month.” (Moser Am. Aff. ¶ 7; Moser Dep. at 50:19-25.)
PPG contends that Mr. Moser has not observed any harmful effects on vegetation or
aquatic life when biking along the trail in the vicinity of the Site. (Id. at 75:9-20.)46 Mr. Moser is
also a bird watcher along various parts of the Allegheny River along the trail on the opposite side
of the River and north of the Site, while he has never attempted to look for any birds near the
Site. (Moser Am. Aff. ¶ 5; Moser Dep. at 46:20-21; 47:18-23; 48:1-3; 49:6-23; 50:9-22; 51:714.)
Plaintiffs note that Mr. Moser testified that he bird watches regularly along trails in the
43
ECF No. 141 Ex. Q.
ECF No. 147 Ex. 22.
45
ECF No. 141 Ex. Q.
46
ECF No. 141 Ex. Q.
44
22
vicinity of the Site and he carries his bird-watching equipment while biking on the trail to the
east of the Allegheny River near the Site. (Moser Dep. at 50:12-25; Moser Am. Aff. ¶ 5.)
Furthermore, they note that a report prepared by a consultant for PPG establishes that birds and
waterfowl inhabit the river corridor along the Site. (ECF No. 147 Ex. 4 at PPG001988.)
PPG contends that Mr. Moser has not observed any ill effects on the birds from the
pollution he believes to be coming from the Site. (Moser Dep. at 56:21-24.) Mr. Moser does not
know if fish are being contaminated from the pollution he believes is coming from the Site, nor
is he harmed as to his interests in the aquatic life in the Allegheny River as he does not go fishing
or eat fish from the River. (Id. at 53:1-17, 23-24.) Plaintiffs point out that Mr. Moser testified
that he has not knowingly consumed fish from the Allegheny River near the Site. (Moser Dep. at
53:5-24.) However, Mr. Moser testified that his interest in the wildlife is being harmed by the
knowledge that PPG is discharging pollutants into the Allegheny River, which have effects
throughout the food-chain, including on the birds of prey that he observes. (Id. at 51:15-52:19;47
Moser Am. Aff. ¶ 10.)
PPG asserts that Mr. Moser has not suffered from any harm from what he believes to be
pollution from the Site and he does not believe it has “harmed him materially.” (Id. at 39:11-14;
72:21-22.)48 Plaintiffs respond that Mr. Moser testified that his enjoyment from recreating in and
around the Allegheny River in the vicinity of the Site and his enjoyment of bird watching and
biking in the vicinity of the Site has been diminished as a result of PPG’s discharges. (Moser
Am. Aff. ¶¶ 11-12.)
Plaintiffs indicate that Mr. Moser owns a canoe and uses it on the Allegheny River,
downstream from the PPG Site. (Moser Am. Aff. ¶ 6.) His enjoyment of canoeing on the
47
48
ECF No. 147 Ex. 22.
ECF No. 141 Ex. Q.
23
Allegheny River is diminished due to his concern about the effects of pollution on the river. (Id.
¶ 11.) He is particularly concerned that pollution from the site may move downstream to the
areas where he boats and canoes. He is concerned that the pollution may have a harmful effect on
wildlife and humans, and may make boats dirty. (Id. ¶¶ 9, 11.) He has observed that oil and other
pollutants accumulate on a friend’s boat after it is used in the Allegheny River. (Id. ¶ 11.)
PPG responds that Mr. Moser owns a sailboat, but has never taken it on the Allegheny
River and has no future plans of sailing on the Allegheny River. (Moser Dep. at 57:18-25; 58:124.)49
Plaintiffs reply that Mr. Moser’s statement that his enjoyment had been diminished was
in his original affidavit. (Moser Aff. ¶ 11.)50 Counsel for PPG questioned Mr. Moser regarding
this statement during his deposition, but only asked about his observations of pollution, not his
diminished enjoyment. (Moser Dep. at 59:17-23.)51 Nothing in his deposition contradicted his
statement in his affidavit, which existed prior to the deposition and is preserved in his amended
affidavit. Further, Plaintiffs note that Mr. Moser testified that he goes boating with a neighbor
downstream from the Site several times a year. (Moser Dep. at 58:25-59:3.) His concern
regarding the effects of pollutants on boats is based on his direct observation that oil from the
Allegheny River accumulates on the boat he uses. (Id. at 59:17-60:3.)52
PPG contends that Mr. Moser stated that his enjoyment from biking, bird watching and
canoeing has not been diminished and he is looking forward to these activities along the
Allegheny River in the future. (Moser Dep. at 56:21-24; 80:20-23.) Plaintiffs respond that Mr.
Moser testified that he was unable to visibly detect “ill effects on the birds from pollution.”
49
ECF No. 141 Ex. Q.
ECF No. 141 Ex. P.
51
ECF No. 147 Ex. 22.
52
ECF No. 155 Ex. 7.
50
24
(Moser Dep. 56:21-24.) He also testified that he “enjoy[ed]” biking and bird watching and was
looking forward to continuing those activities. (Id. at 80:20-23.) However, Mr. Moser also
testified that his enjoyment of those activities was diminished as a result of PPG’s discharges and
that his enjoyment would increase if the pollution were cleaned up. (Moser Am. Aff. ¶¶ 11-12.)
Robert Klaput
Robert Klaput, a member of both the Sierra Club and PennEnvironment, lives in Bethel
Township, which is approximately 6 miles south of Ford City, 8 miles from the Site and 6 miles
from the Allegheny River and has lived there since 1975. (Klaput Am. Aff. ¶¶ 1, 3-4; see also
Klaput Dep. at 7:12-24.)53 Mr. Klaput joined both organizations because he is interested in
environmental issues, including water quality, conservation and public health, and he makes
annual contributions to both organizations to support their missions. (Klaput Am. Aff. ¶ 5.) Mr.
Klaput first learned about the Site from his father in the 1970s but had forgotten about it until he
received an e-mail from PennEnvironment soliciting its members’ participation in this suit.
(Klaput Dep. at 24:11-25; 25:1-7.) Plaintiffs note that Mr. Klaput testified that he is familiar
with the affected area, as he regularly launches kayaks from a point in the Allegheny River near
the Site and in Crooked Creek, directly across the river from the Site. (Klaput Dep. at 28:17-25,
73:13-74:11; Klaput Am. Aff. ¶ 6.)
Plaintiffs state that, contrary to PPG’s assertion that Mr. Klaput testified to “no specific
concerns” and could not identify specific pollution from the Site, Mr. Klaput described in his
deposition his concerns about high pH and metals entering the Allegheny River from the Site.
(Klaput Dep. at 30:2-31:13.)54 Mr. Klaput also testified that, prior to June 9, 2013, he was aware
53
ECF No. 119 Ex. 25; ECF No. 141 Ex. S. Mr. Klaput’s deposition excerpts appear in four
separate places in the record.
54
ECF No. 155 Ex. 6.
25
of the general location and nature of the Site, relative to the areas where he recreates along and
near the Allegheny River. (Klaput Dep. at 11:1-7, 29:19-25.) Specifically, Mr. Klaput testified
that he is familiar with the affected area and that his concerns about PPG’s discharges have led
him to alter his activities in the vicinity. Mr. Klaput testified that he regularly launches kayaks
from a point in the Allegheny River near the Site and in Crooked Creek, directly across the river
from the Site. (Id. at 28:17-25, 73:13-74:11.) This testimony is directly reflected in his amended
affidavit, which states, “[a]bout twice each summer, I kayak in Crooked Creek, launching my
kayak from the point at which Crooked Creek enters the Allegheny River, directly across from
the PPG Site.” (Klaput Am. Aff. ¶ 6.) He testified that he is concerned about the effects of
pollution in the water on humans who recreate in the river and, consequently, tries to minimize
his contact with the water and no longer uses sit-upon kayaks near the Site. (Klaput Dep. at 76:525; see also id. at 59:12-19.) His enjoyment of kayaking in the area is diminished by his concern
for the effects of pollution on individuals, including children, who he observes recreating in the
river. (Id. at 51:13-52:4.)
Mr. Klaput’s residence uses well water. Due to the distance and location of his home
upstream from the Allegheny River and the Site, the Site has not impacted his well water and he
is not concerned about the water quality in his well. (Klaput Dep. at 50:21-25; 51:1-7.)55 Mr.
Klaput has been kayaking for 15 years. PPG contends that he generally kayaks upstream from
the Site in Manorville, PA and does not have any specific concerns regarding pollution from the
Site – he is only generally concerned about water quality. (Id. at 41:1-18; 44:6-16; 64:20-21.)
Plaintiffs point out that Mr. Klaput testified that he kayaks in Crooked Creek and has kayaked in
the Allegheny River from Crooked Creek to the first island below Rosston, downstream from the
55
ECF No. 141 Ex. S.
26
Site. (Klaput Am. Aff. ¶ 7; Klaput Dep. at 43:15-21.56) Mr. Klaput uses a launch site in the
Allegheny River directly across from the PPG Site two to three times per year. (Id. at 73:1374:11; see also id. at 28:17-25.) He is specifically concerned about the effects of pollution in the
water on humans who recreate in the river and, consequently, tries to minimize his contact with
the water and no longer uses sit-upon kayaks near the Site. (Klaput Am. Aff. ¶ 13; Klaput Dep. at
76:5-25; see also id. at 59:12-19.) His enjoyment of kayaking in the area is diminished by his
concern for the effects of pollution on individuals, including children, who he observes
recreating in the river. (Id. at 51:13-52:4.)
PPG states that Mr. Klaput did not attempt to determine the location of the Site and did
not know where it was located until June 9, 2013 when he went out on his kayak on the
Allegheny River to take photographs of the Site. (Klaput Dep. at 10:17-22, 28:10-13, 53:15-23,
54:5-8.)57 Plaintiffs note that prior to June 9, 2013, Mr. Klaput was aware of the general location
and nature of the Site, relative to the areas where he recreates along and near the Allegheny
River. (Klaput Dep. at 11:1-7, 29:19-25.)58
PPG states that this was only time he has ever kayaked near or past the Site and he has no
plan to kayak past the Site again or downstream of the Site. (Klaput Dep. at 28:14-16, 55:17-23,
76:20-25.)59 Plaintiffs respond that Mr. Klaput testified that he launches his kayaks from a point
directly across the river from the PPG Site two or three times per year. (Klaput Dep. at 73:1374:11.) He further testified that he plans to return to kayak at this location. (Id. at 28:17-25.)
PPG states that, while Mr. Klaput fishes in waterways that flow into the Allegheny River
and upstream from the Site, he does not fish from the Allegheny River or near the Site. He
56
ECF No. 147 Ex. 23.
ECF No. 141 Ex. S.
58
ECF No. 147 Ex. 23.
59
ECF No. 141 Ex. S.
57
27
normally eats the fish he catches and has no concerns about eating the fish. (Klaput Dep. at
46:20-25, 47:5-25, 48:13, 19-21.)60 Plaintiffs note that Mr. Klaput stated that he would hesitate
to consume fish caught in the vicinity of the Site because of his concerns about contaminants in
the fish. (Klaput Am. Aff. ¶ 12; Klaput Dep. at 38:20-39:9.61)
Similarly, PPG contends that Mr. Klaput normally goes bird-watching upstream from the
Site or on Crooked Creek, which flows into the River. He is generally only concerned “ethically”
about the well-being of the birds and is looking forward to his next bird-watching trip. (Klaput
Dep. at 72:2-20,74:12-13, 75:9-17.)62 Plaintiffs point out that Mr. Klaput testified that he is
concerned about the effects of pollution from the PPG site on fish in the river and on birds that
consume fish from the river. (Klaput Dep. at 72:5-15; Klaput Am. Aff. ¶¶ 11-12.) He testified
that if the Site and pollution were cleaned up, his enjoyment and appreciation of the Allegheny
River would be enhanced. (Klaput Am. Aff. ¶ 14.)
He also bikes on the trail on the opposite side of the Allegheny River behind the Rosston
Marina. While he generally complained about the need to clean up the Site to enhance his
enjoyment of biking, he is looking forward to biking in the future. (Klaput Dep. at 72:21-24;
73:5-12, 74:12-21, 75:18-20.) PPG contends that Mr. Klaput’s enjoyment of his recreational
activities and his appreciation of the Allegheny River is only diminished by the knowledge of
pollution to the extent that he is generally concerned for other people and for the environment, as
his recreational activities and personal enjoyment of those activities on the River has not been
diminished. (Id. at 51:11-25, 52:1-10, 71:1-12; 72:21-24, 73:5-12, 74:12-21, 75:18-20.)
Plaintiffs respond that Mr. Klaput testified specifically that his “enjoyment and
60
ECF No. 141 Ex. S.
ECF No. 155 Ex. 6.
62
ECF No. 141 Ex. S.
61
28
appreciation of the Allegheny River is diminished by the knowledge that pollution is entering the
river from the PPG site.” (Klaput Am. Aff. ¶ 13.) He also gave testimony that he has had to
change his recreational activities as a result of his concerns about pollution from the Site, as he
no longer uses sit-upon kayaks when he launches his kayaks from the launch site directly across
the river from the PPG Site. (Klaput Dep. at 59:12-19.)63 In the testimony cited by PPG, Mr.
Klaput stated that he would “feel much better” about the wildlife and other individuals who
recreate in the river if the pollution from the PPG site was removed. (Id. at 74:12-21.) Further,
Mr. Klaput testified that his enjoyment and appreciation of the Allegheny River would be
enhanced as a result of cleaning up the contamination from the PPG Site. (Klaput Am. Aff.
¶ 14.)
PPG contends that Mr. Klaput testified that he has not been personally harmed by the Site
and that it only offends his environmental ethics. (Klaput Dep. at 33:10-15, 71:1-2.)64 Plaintiffs
acknowledge that Mr. Klaput testified that he had not been physically harmed by the pollution
from the Site, but indicate that it is not material whether Mr. Klaput has been physically harmed
by PPG’s discharges from the Site.
Georgann Kovacovsky
Georgann Kovacovsky is a resident of New Bethlehem, Pennsylvania. (Kovacovsky Am.
Aff. ¶ 1.)65 She grew up in and around Ford City. (Id. ¶ 4.) Ms. Kovacovsky is a member of
both PennEnvironment and Sierra Club. (Id. ¶ 3.) Ms. Kovacovsky became interested in this
lawsuit after receiving the PennEnvironment e-mails dated November 13, 2012 and March 11,
63
ECF No. 147 Ex. 23.
ECF No. 141 Ex. S.
65
ECF No. 119 Ex. 27.
64
29
2013. (Kovacovsky Dep. at 9:23-25, 10:1-20.)66 Ms. Kovacovsky has a deep attachment to the
Allegheny River. (Kovacovsky Am. Aff. ¶ 4.) Growing up in the area, she frequently swam,
water-skied, and boated in the river.
Ms. Kovacovsky has driven past the PPG Site numerous times over her years spent living
in the area, as often as three to four times per month. (Kovacovsky Dep. at 21:8-12;67
Kovacovsky Am. Aff. ¶ 5.) Driving past the Site, she could see rows of mounds of slag waste at
the site that appeared to be about seven or eight feet high and extended for about 50 feet. Slurry
lagoons that looked like large, squarish ponds were also visible. She is concerned that the Site
remains unremediated. Id.
PPG contends that Ms. Kovacovsky could not identify the “waste” she observed when
driving past the Site and admitted that she had no personal knowledge. (Kovacovsky Dep. at
20:19-22; 23:3-4, 8-16.)68 To this end, Kovacovsky has never been on the Site, or the adjacent
properties.
Plaintiffs reply that Ms. Kovacovsky’s description is almost identical to the description in
her amended affidavit. She testified to seeing “large, long hills of dumped waste * * * like
mountains kind of, probably seven or eight feet tall.” (Kovacovsky Dep. at 20:15-18)69 and
identified the presence of “slurry ponds” at the Site (id. at 22:18-20). She also specifically
testified that she knew it was waste dumped by PPG, although PPG’s counsel did not
ask her to identify the type of waste further. (Id. at 20:19-22, 23:3-16.) It is immaterial that Ms.
Kovacovsky has not been on the Site itself.
66
ECF No. 141 Ex. U. Ms. Kovacovsky’s deposition excerpts appear in four separate places in
the record.
67
ECF No. 147 Ex. 24.
68
ECF No. 144 Ex. F.
69
ECF No. 155 Ex. 8.
30
Ms. Kovacovsky enjoys biking on the trail that runs along the Allegheny River through
Ford City. (Kovacovsky Am. Aff. ¶ 6.) She has observed off-colored sediments and brown,
bubbly areas that appear contaminated along the river. (Id. ¶ 7.) The enjoyment she gets from
biking is diminished by seeing these areas along the river and by the knowledge that the
sediments in the river are contaminated. (Id.)
PPG contends that Ms. Kovacovsky bikes along the Allegheny River on the trail on the
opposite side of the River from the Site that goes from Rosston to Ford City, through Manorville
into Kittanning, which are north and upstream from the Site. (Kovacovsky Dep. at 30:15-21,
32:3-5, 34:9-14.)70 Ms. Kovacovsky is not close to the Allegheny River when she bikes past
Rosston on this trail. (Kovacovsky Dep. at 32:3-5.) She could not identify what she described as
“sediments” along the river that she observed upstream near the former PPG Ford City
manufacturing plan, but could only describe what she saw as a “collection of debris.” (Id. at
33:8-25; see also id. at 45:24-25, 46:1-17.71) She testified that she is looking forward to biking
and hiking in the future. (Id. at 31:3, 39:15-19, 42:19-25, 43:1.)72
Plaintiffs reply that Ms. Kovacovsky hikes and bikes along a portion of the trail upstream
from the Site, but she also testified that she hikes and bikes on an unofficial trail near the
Rosston Marina, within view of the river and directly across from the PPG Site. (Kovacovsky
Dep. at 40:13-23, 42:1-2, 8-12.)73 Ms. Kovacovsky stated in her initial and amended affidavits
that she enjoys hiking and biking the trail, but that such enjoyment is diminished by her concerns
about pollution. (Kovacovsky Am. Aff. ¶¶ 5, 7; Kovacovsky Aff. ¶¶ 5, 7.74) PPG cites no
70
ECF No. 141 Ex. U.
ECF No. 144 Ex. F.
72
ECF No. 141 Ex. U.
73
ECF No. 147 Ex. 24.
74
ECF No. 141 Ex. T.
71
31
testimony that contradicts Ms. Kovacovsky’s assertion that her enjoyment is less than what it
would otherwise be, absent her concerns about PPG’s discharges. To the contrary, Ms.
Kovacovsky testified, in response to a question from PPG’s counsel about the sediments
mentioned in her original affidavit, that her aesthetic appreciation of the river is affected by the
foreign substances visible in the water. (Kovacovsky Dep. at 33:8-25.)
Ms. Kovacovsky enjoys bird-watching in areas near the Allegheny River. (Kovacovsky
Am. Aff. ¶ 6.) She knows that pollution can accumulate through the food chain and her
enjoyment of bird-watching is diminished by the knowledge that the birds eat fish and other
animals that contain contaminants. (Id. ¶ 8.)
Plaintiffs note that Ms. Kovacovsky testified that she goes biking along an unofficial
portion of the trail directly across the river from the Site and, as PPG asserts, she enjoys bird
watching during those same trips. (Kovacovsky Dep. at 31:3-9.)75 PPG cites no testimony that
contradicts the assertion that Ms. Kovacovsky is concerned about the effects of the pollution on
the birds and fish, or that her enjoyment of bird-watching is diminished by that knowledge.
Ms. Kovacovsky’s enjoyment of both biking and bird-watching near the Allegheny River
would increase if the sediments were remediated because the birds and other wildlife would be
less at risk of getting sick from contamination. (Kovacovsky Am. Aff. ¶ 9.)
PPG contends that Ms. Kovacovsky continues to enjoy biking, bird watching, and hiking
along this trail, and is looking forward to doing these activities in the future in the areas around
the Allegheny River. (Kovacovsky Dep. at 30:15-21, 31:3, 32:3-5, 34:9-14, 39:15-19, 42:19-25,
43:1.)76 Plaintiffs reply that PPG cites no testimony that contradicts Ms. Kovacovsky’s assertion
that her enjoyment is less than what it would otherwise be, absent her concerns about PPG’s
75
76
ECF No. 155 Ex. 8.
ECF No. 141 Ex. U.
32
discharges or that such enjoyment would increase if the Site were cleaned up. They contend that
it is immaterial that Ms. Kovacovsky is looking forward to biking, hiking, and bird-watching
near the Site in the future.
Despite growing up and living in the area around the Allegheny River, Ms. Kovacovsky
has never eaten fish from the river due to concerns about contaminants in the fish. (Kovacovsky
Am. Aff. ¶ 10.) She does not know anyone who consumes fish from the river. If the pollution in
the river were cleaned up, she would eat fish from the river and would appreciate having the
Allegheny River as a source of local, sustainable seafood.
PPG contends that Ms. Kovacovsky could not identify any admissible reason to support
her belief that fish are contaminated. (Kovacovsky Dep. at 49:22-25, 50:1-25, 51:1-25, 52:1-9.)77
Plaintiffs reply that Ms. Kovacovsky’s concerns are based on her knowledge of the Site and her
understanding of how pollution accumulates through the food chain. (Kovacovsky Am. Aff.
¶ 8.)
Ms. Kovacovsky is very concerned about the effects of pollution from the PPG Site on
the health of the environment and her quality of life. (Kovacovsky Am. Aff. ¶ 11.) Knowledge
of the pollution has caused her to question whether she should continue to reside in the area and
has caused her not to encourage her daughters to move to the area.
PPG contends that Ms. Kovacovsky was not aware of the alleged pollution from the Site
until she received the PennEnvironment e-mails dated November 13, 2012 and March 11, 2013
regarding PennEnvironment’s need for members to help establish standing. (Kovacovsky Dep.
at 9:23-25, 10:1-20.)78 Ms. Kovacovsky lives approximately 25 miles northeast from the Site and
did not know if she had suffered any ill effects from what she believed to be pollution from the
77
78
ECF No. 144 Ex. F.
ECF No. 141 Ex. U.
33
Site. (Kovacovsky Dep. at 19:11-16, 53:1-6.)79
Plaintiffs reply that Ms. Kovacovsky testified that she has known of, and seen, the waste
that PPG deposited at the Site, beginning in the 1960s. (Kovacovsky Dep. at 19:22-20:22,
22:13-23:7.)80 In the testimony cited by PPG, Ms. Kovacovsky testified that she did not know if
she had “personally suffered ill effects” from pollution, although she was not asked if she had
suffered effects from PPG’s discharges from the Site. (Id. at 53:1-6.) This testimony is not
inconsistent with her statements in her affidavit that she is concerned about the effects of
pollution from the PPG Site (Kovacovsky Am. Aff. ¶ 11) and that her enjoyment of her
recreational activities in the affected area has been diminished as a result of PPG’s discharges
(id. ¶¶ 7-8).
PPG contends that Ms. Kovacovsky has never been to the Site, or the adjacent properties.
(Kovacovsky Dep. at 23:24-25, 24:8-12, 16-19.)81 Plaintiffs note that Ms. Kovacovsky testified
that she is familiar with the vicinity of the Site and has driven past it regularly for many years.
(Kovacovsky Dep. at 21:8-12;82 Kovacovsky Am. Aff. ¶ 5.)
PPG notes that she has never observed any ill effects on the birds she observes from any
pollution. (Kovacovsky Dep. at 31:1, 9, 22-25, 39:14.)83 Ms. Kovacovsky continues to enjoy
biking, bird watching, and hiking along this trail, and is looking forward to doing these activities
in the future in the areas around the Allegheny River. (Id. at 31:3, 39:15-19, 42:19-25, 43:1.)
Plaintiffs point out that Ms. Kovacovsky also testified that her enjoyment of those activities was
diminished as a result of PPG’s discharges and that her enjoyment would increase if the pollution
79
ECF No. 144 Ex. F.
ECF No. 155 Ex. 8.
81
ECF No. 141 Ex. U.
82
ECF No. 147 Ex. 24.
83
ECF No. 141 Ex. U.
80
34
were cleaned up. (Kovacovsky Am. Aff. ¶¶ 7-9.)
Procedural History
On January 13, 2012, Plaintiffs gave notice of their intent to file suit to the Administrator
of the EPA, the 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.) On March 20, 2012, Plaintiffs filed a complaint against PPG and
Ford City under the CWA and the CSL (the “CWA Complaint”). The case was docketed at Civ.
A. No. 12-342. Count I alleges that that PPG has unlawfully discharged pollutants into
navigable waters without an NPDES permit and continues to do so in violation of Sections
301(a) and 402 of the CWA, 33 U.S.C. §§ 1311(a), 1342. Count II alleges that PPG has violated
and continues to violate sections 301(a) and 402(p)(2)(B), 33 U.S.C. §§ 1311(a), 1342(p)(2)(B),
by discharging storm water associated with industrial activity without a permit authorizing such
discharge. Count III alleges that PPG has violated and continues to violate Sections 301 and 307
of the CSL, 35 P.S. §§ 691.301, 691.307, by discharging industrial waste into the Allegheny
River, Glade Run, and groundwater associated with the Site without authorization or a permit
obtained from PADEP, which constitutes a nuisance under Section 307(c). Count IV alleges that
PPG has violated and continues to violate Section 401 of the CSL, 35 P.S. § 691.401, by
discharging pollutants and discharging waste containing high levels of pH, into the Allegheny
River, Glade Run, and groundwater without a permit issued by PADEP authorizing such
discharges. Count V alleges that PPG has violated the CWA in that the Treatment Plan it
submitted in June 2009 fails to provide a schedule for the application for NPDES permits and,
based on the monthly progress reports submitted by PPG beginning on April 1, 2009, through at
least January 5, 2012, PPG took no steps to apply for such permits and Plaintiffs allege, on
35
information and belief, that PPG has failed to provide a schedule for the application of NPDES
permits and has taken no steps to apply for such permits. Count VI alleges that PPG’s acts as
alleged in Count V also violate section 611 of the CSL, 35 P.S. § 691.611. Count VII alleges
that PPG has discharged, and continues to discharge, untreated and ineffectively treated
wastewater, in violation of the July 2 Addendum, and Count VIII alleges that these acts also
violate section 611 of the CSL. Count IX alleges that PPG has violated the CWA by committing
162 discharge violations between February 2010 and December 2011, in violation of the 2009
Administrative Order, and Count X alleges that these acts also violate section 611 of the CSL.
Count XI alleges that PPG has violated the CWA by committing 33 reporting violations between
February 2010 and December 2011, in violation of the 2009 Administrative Order, and Count
XII alleges that these acts also violate section 611of the CSL.
On April 20, 2012, Plaintiffs filed another complaint against PPG and Ford City under
the RCRA (the “RCRA Complaint”). They allege that PPG is a generator and/or transporter of
the solid or hazardous waste at the Site, as well as an owner and/or operator of the site, and has
contributed to the past or present handling, storage, treatment, transportation, or disposal of the
solid or hazardous waste at the Site, thereby presenting an imminent and substantial
endangerment to health or the environment. This case was docketed at Civ. A. No. 12-527. On
May 25, 2012, Plaintiffs filed a motion to consolidate the two cases (ECF No. 11). On May 29,
2012, an order was entered granting this motion and consolidating the cases at No. 12-342 (ECF
No. 12).
On September 25, 2013, Plaintiffs filed a second CWA/CSL complaint, including
additional instances of alleged pollution and adding BPRI as a defendant. The case was
docketed at No. 13-1395. On that same date, Plaintiffs filed a second RCRA complaint, also
36
adding BPRI as a defendant, docketed at No. 13-1396. On September 30, 2013, an order was
entered consolidating these cases at No. 12-342. Finally, on February 18, 2014, Plaintiffs filed a
third CWA/CSL complaint against PPG, Ford City and BPRI, docketed at No. 14-229. On April
8, 2014, Plaintiffs filed a motion to consolidate the case and on April 9, 2014, an order was
entered consolidating the case at No. 12-342.84
On February 28, 2013, PPG filed a motion to dismiss on various grounds, including lack
of standing (ECF No. 24). Ford City filed a motion indicating it was joining in PPG’s motion to
dismiss (ECF No. 29). On August 8, 2013, a Memorandum Opinion and Order was entered,
denying the motions (ECF No. 66).
On December 19, 2013, Plaintiffs filed a motion for partial summary judgment on the
issue of standing (ECF No. 116). On February 28, 2014, PPG filed its cross-motion for summary
judgment on the issue of standing (ECF No. 137). The parties filed response briefs on March 31,
2014 (ECF Nos. 142, 145). On April 21, 2014, Plaintiffs filed a reply brief (ECF No. 153).
Standard of Review
As amended effective December 1, 2010, the Federal Rules of Civil Procedure provide
that: “The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts
sufficient to establish the existence of any element essential to that party’s case, and for which
that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of identifying evidence which demonstrates
84
The complaints state that Plaintiffs are not pursuing claims or specific relief against Ford City
or BPRI, but that they are joined as indispensable parties under Rule 19(a). (CWA Compl. ¶ 13
& at 23-24; RCRA Compl. ¶ 15 & at 11; Second CWA Compl. ¶¶ 5-6, 17-18 & nn.1-2 & at 30;
Second RCRA Compl. ¶¶ 5-6, 19-20 & nn.1-2 & at 15; Third CWA Compl. ¶¶ 19-20 & at 19.)
37
the absence of a genuine issue of material fact. Once that burden has been met, the non moving
party must set forth “specific facts showing that there is a genuine issue for trial” or the factual
record will be taken as presented by the moving party and judgment will be entered as a matter
of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An
issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In following this directive, a court must take the facts in the light most favorable to the
non-moving party, and must draw all reasonable inferences and resolve all doubts in that party’s
favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005); Doe v. County
of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001). Although PPG questions Plaintiffs’ motion at
this stage of the proceedings, Plaintiffs have cited authority that moving for partial summary
judgment on the issue of standing in an environmental citizen suit is a recognized procedure.
See American Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003).
Plaintiffs argue that: 1) the three named members of the organizations have standing
because they have suffered injuries in fact, the injuries are fairly traceable to PPG’s actions and
the injuries are redressable by a favorable decision; and 2) the organizations themselves have
standing both as representatives of their members and in their own right.
PPG argues that the three named individuals were solicited to assist Plaintiffs on standing
eight months after this suit was initiated, and two of these individuals had no prior knowledge of
the Site until after learning of the lawsuit, but even considering the affidavits filed by these
individuals (which PPG moves to strike as sham affidavits because they contradict prior
testimony given at their depositions), they indicate only “generalized” environmental concerns
and not the level of injury necessary to demonstrate standing.
38
Standing
Section 505 of the CWA authorizes a citizen suit “against any person … who is alleged to
be in violation of an effluent standard or limitation under this chapter” by any “person or persons
having an interest which is or may be adversely affected.” 33 U.S.C. § 1365(a, g). Similarly,
section 7002 of the RCRA states that “any person may commence a civil action on his own
behalf”… “against any person … who has contributed or who is contributing to the past or
present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste
which may present an imminent and substantial endangerment to health or the environment.” 42
U.S.C. § 6972(a)(1)(B). Finally, the CSL provides that “any person having an interest which is
or may be adversely affected may commence a civil action on his own behalf to compel
compliance with this act or any rule, regulation, order or permit issued pursuant to this act.” 35
P.S. § 691.601(c).
The Supreme Court has held that:
In every federal case, the party bringing the suit must establish standing to
prosecute the action. “In essence the question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues.”
Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The
standing requirement is born partly of “‘an idea, which is more than an intuition
but less than a rigorous and explicit theory, about the constitutional and prudential
limits to the powers of an unelected, unrepresentative judiciary in our kind of
government.’” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d
556 (1984) (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178–1179
(C.A.D.C. 1982) (Bork, J., concurring)).
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). The Court explained that:
our standing jurisprudence contains two strands: Article III standing, which
enforces the Constitution’s case-or-controversy requirement, see Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559-562, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992); and prudential standing, which embodies “judicially self-imposed limits
on the exercise of federal jurisdiction,” Allen, 468 U.S., at 751, 104 S.Ct. 3315.
The Article III limitations are familiar: The plaintiff must show that the conduct
of which he complains has caused him to suffer an “injury in fact” that a
39
favorable judgment will redress. See Lujan, 504 U.S., at 560–561, 112 S.Ct. 2130.
Although we have not exhaustively defined the prudential dimensions of the
standing doctrine, we have explained that prudential standing encompasses “the
general prohibition on a litigant’s raising another person’s legal rights, the rule
barring adjudication of generalized grievances more appropriately addressed in
the representative branches, and the requirement that a plaintiff’s complaint fall
within the zone of interests protected by the law invoked.” Allen, 468 U.S., at
751, 104 S.Ct. 3315. See also Secretary of State of Md. v. Joseph H. Munson Co.,
467 U.S. 947, 955–956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). “Without such
limitations—closely related to Art. III concerns but essentially matters of judicial
self-governance—the courts would be called upon to decide abstract questions of
wide public significance even though other governmental institutions may be
more competent to address the questions and even though judicial intervention
may be unnecessary to protect individual rights.” Warth, 422 U.S., at 500, 95
S.Ct. 2197.
Id. at 11-12. An association may have standing in its own right or as a representative of its
members who have been injured in fact. Pennsylvania Psychiatric Society v. Green Spring
Health Servs., Inc., 280 F.3d 278, 283 (3d Cir. 2002) (citations omitted).
However, the manner in which standing must be supported depends upon the stage of the
litigation at which the issue is raised:
At the pleading stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that
general allegations embrace those specific facts that are necessary to support the
claim.” [Lujan v.] National Wildlife Federation, 497 U.S. [871], 889, 110 S.Ct.
[3177,] 3189 [(1990)]. In response to a summary judgment motion, however, the
plaintiff can no longer rest on such “mere allegations,” but must “set forth” by
affidavit or other evidence “specific facts,” Fed.Rule Civ.Proc. 56(e), which for
purposes of the summary judgment motion will be taken to be true. And at the
final stage, those facts (if controverted) must be “supported adequately by the
evidence adduced at trial.” Gladstone [Realtors v. Village of Bellwood], 441 U.S.
[91], at 115, n. 31, 99 S.Ct. [1601,] 1616 n.31 [(1979)].
Defenders of Wildlife, 504 U.S. at 561.
In a case involving an association (FOE) that brought a citizen suit under the CWA
alleging noncompliance with an NPDES permit, the Supreme Court explained that:
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130,
119 L.Ed.2d 351 (1992), we held that, to satisfy Article III’s standing
40
requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision. An association has standing to bring
suit on behalf of its members when its members would otherwise have standing to
sue in their own right, the interests at stake are germane to the organization’s
purpose, and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. Hunt v. Washington State
Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383
(1977).
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs (TOC), Inc., 528 U.S. 167, 180-81
(2000). “The relevant showing for purposes of Article III standing … is not injury to the
environment but injury to the plaintiff.” Id. at 181. In addition, “a plaintiff must
demonstrate standing separately for each form of relief sought.” Id. at 185. However,
courts may not “raise the standing hurdle higher than the necessary showing for success
on the merits in an action.” Id. at 181. The Court observed that “environmental plaintiffs
adequately allege injury in fact when they aver that they use the affected area and are
persons for whom the aesthetic and recreational values of the area will be lessened by the
challenged activity.” Id. at 183 (citations omitted). See also Interfaith Cmty. Org. v.
Honeywell Int’l, Inc., 399 F.3d 248, 254 (3d Cir. 2005) (although a plaintiff must have
suffered an invasion of a concrete and particularized legally protected interest, “an
identifiable trifle is enough.”); American Bottom Conservancy v. U.S. Army Corps of
Engineers, 650 F.3d 652, 658 (7th Cir. 2011) (“it is enough to confer standing that their
pleasure is diminished even if not to the point that they abandon the site.”)
The Court held that FOE demonstrated on a fully developed record that it had standing to
seek both injunctive relief and civil penalties when it submitted affidavits from various members
indicating that they used the North Tyger River and the area around it for fishing, camping,
41
swimming, picnicking and other activities, but could not do so any longer because of Laidlaw’s
discharges into the river. 528 U.S. at 181-84. The Court distinguished Lujan v. National
Wildlife Federation, 497 U.S. 871, 889 (1990), which contained averments that a member used
“unspecified portions of an immense tract of territory, on some portions of which mining activity
has occurred or probably will occur by virtue of government action.” And it distinguished
Defenders of Wildlife, 504 U.S. at 564, which contained “some day intentions to visit
endangered species halfway around the world.” Id. at 183-84. Thus, although it is far from an
exact science, the determination turns on whether an individual uses an “area affected by the
challenged activity” rather than “an area roughly in the vicinity of it.” Friends of the Earth, Inc.
v. Gaston Copper Recycling Corp., 629 F.3d 387, 397 (4th Cir. 2011).
PPG cites Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron,
Inc., 123 F.3d 111 (3d Cir. 1997). In that case, the Court of Appeals held that the plaintiff did
not meet the standing requirement when it alleged that its members’ enjoyment of the Delaware
River was lessened because they “knew” that it had been polluted, noting that this was a
“generalized grievance” that was not a judicially cognizable injury. Id. at 120-21. Plaintiffs
respond that Magnesium Elektron: 1) is not good law because it was implicitly overruled by the
Supreme Court’s holding in Laidlaw that the relevant issue is injury to the plaintiff, not the
environment; and 2) is distinguishable because they are not merely alleging that their injury is
based upon mere knowledge of environmental pollution.
Plaintiffs have demonstrated that Magnesium Elektron is distinguishable from this case,
because they are not merely contending that their members’ enjoyment of the environment has
been lessened because they “know” that it has been polluted. Rather, they have submitted sworn
statements and deposition testimony from three members about the effect of the pollution on
42
their recreational activities of the kind found sufficient in Laidlaw, 528 U.S. at 181-82
(averments of camping, picnicking, bird-watching and walking near a river), and
Interfaith/Honeywell, 399 F.3d at 256 (affidavits and deposition testimony of walking, fishing
and biking near a river contaminated with chromium waste).85 In addition, “the desire to use or
observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest
for purpose of standing.” Defenders of Wildlife, 504 U.S. at 562-63 (citation omitted). Thus,
the individuals’ statements that their enjoyment of wildlife has been diminished by PPG’s
actions can also give rise to a cognizable injury.
PPG contrasts this case with cases like Public Interest Research Group of N.J., Inc. v.
Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1990), in which the plaintiffs
complained of “the brown color and the bad odor” of the water, and Natural Resources Defense
Council v. Texaco Refining & Marketing, 2 F.3d 493, 505 (3d Cir. 1993), in which the plaintiffs
observed an “oily sheen” and an “unpleasant smell” near Texaco’s refinery. Yet when Ms.
Kovacovsky testified to seeing mounds of slag waste seven or eight feet high and extending for
50 feet and off-colored sediments and brown, bubbly areas along the River (Kovacovsky Am.
Aff. ¶¶ 5, 7; Kovacovsky Dep. at 33:8-25), PPG attempts to dismiss her observations because she
could not identify specifically the pollution she saw. Ms. Kovacovsky’s testimony is similar to
the evidence found to be sufficient in the cases PPG cites and it has provided no basis for
distinguishing them.
Plaintiffs correctly note that they did not need to identify specific members who have
been injured when the complaints were filed. See Building & Constr. Trades Council, 448 F.3d
85
It is also fair to question whether Magnesium Elektron remains good law in light of the fact
that it predates Laidlaw and that it relies in part on an observation that the plaintiffs “have not
shown that the River suffers from particular types of pollution.” 123 F.3d at 121.
43
at 145 (there is no authority for the proposition that an association must “name names” in a
complaint in order properly to allege injury in fact to its members.) Thus, PPG’s repeated refrain
that Plaintiffs’ 30(b)(6) representatives could not identify individual members on the date the
complaint was filed is irrelevant.
Similarly, PPG’s arguments that the plaintiff organizations were “solicited” by TPM, that
TPM arranged for the organizations to join the lawsuit without paying fees and expenses, and
that TPM agreed to indemnify any individual Sierra Club members who might be sued as a result
of their participation in the suit are not relevant to the issue of standing. PPG cites no authority
in support of these arguments and, although it cites the observation of the Interfaith/Honeywell
court that TPM’s litigation tactics were “distasteful,” “aggressive” and “unsavory,” it omits the
fact that the district court nevertheless credited TPM’s arguments as to “the reasonableness of its
legal and expert fees, expenses and hours charged.” Interfaith Cmty. Org. v. Honeywell Int’l,
Inc., 726 F.3d 403, 417 (3d Cir. 2013). Plaintiffs also note that the district court acknowledged
that TPM’s strategies were in response to equally aggressive tactics employed by the opposing
party and credited TPM with its ability to achieve and enforce multiple remedies through consent
decrees. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 808 F. Supp. 2d 744, 751-52 (D.N.J.
2011), aff’d in part, rev’d in part, 726 F.3d 403 (3d Cir. 2013).
PPG also contends that the three individuals did not visit the Site until after they were
recruited to join this lawsuit, but that contention is not supported by the record. “Further, the
idea that the declarant’s environmental activism automatically precludes them from ever
fulfilling the requirements for standing does not withstand review.” Ohio Valley Envtl.
Coalition, Inc. v. Coal-Mac, Inc., 775 F. Supp. 2d 900, 911 (S.D.W. Va. 2011).
In addition, Plaintiffs note that where Ms. Kovacovsky lives in relation to the Site is
44
irrelevant to her injuries if she uses the affected area. See Laidlaw, 528 U.S. at 182-83
(summarizing testimony from plaintiff member who lived 20 miles from the site and would have
used the river near the site if not for concern about harmful pollution, as well as testimony from
member who canoed 40 miles downstream of the site and would have done so closer but for
concern about harmful pollutants); American Canoe Ass’n, Inc. v. City of Louisa Water & Sewer
Comm’n, 389 F.3d 536, 541-42 (6th Cir. 2004) (although a member lived in Ashland, Kentucky
rather than Louisa, that fact was not dispositive because he demonstrated an interest in canoeing
and fishing in the affected area). Thus, the fact that Ms. Kovacovsky lives 25 miles away from
the Site is not dispositive, as PPG contends.
PPG contends that the amended affidavits submitted on behalf of Mr. Moser, Mr. Klaput
and Ms. Kovacovsky are “sham affidavits” that should be disregarded. Plaintiffs respond that
the affidavits are consistent with the individuals’ deposition testimony. Mr. Moser signed his
original affidavit on April 15, 2013 (ECF No. 141 Ex. P), he was deposed on September 24,
2013, and he signed an amended affidavit on November 11, 2013 (ECF No. 119 Ex. 26). The
same dates apply to Mr. Klaput, except that he signed his amended affidavit on November 6,
2013 (ECF No. 141 Ex. R, ECF No. 119 Ex. 25).86 Ms. Kovacovsky signed her original affidavit
on July 31, 2013 (ECF No. 141 Ex. T), she was deposed on October 17, 2013 and she signed an
amended affidavit on December 9, 2013 (ECF No. 119 Ex. 27).87
Sham Affidavit Doctrine
The Court of Appeals has held that:
86
The original affidavits for Mr. Klaput and Mr. Moser were submitted on April 24, 2013 in
support of Plaintiffs’ opposition to PPG’s motion to dismiss. (ECF No. 43 Exs. 8, 9.) The Court
did not review them because the allegations of the Complaint were sufficient at that time.
87
Plaintiffs state that Ms. Kovacovsky’s original affidavit was first produced to PPG on August
1, 2013 as part of their supplemental responses to PPG’s first request for production of
documents. (ECF No. 149 Ex. F.)
45
A sham affidavit is a contradictory affidavit that indicates only that the affiant
cannot maintain a consistent story or is willing to offer a statement solely for the
purpose of defeating summary judgment. A sham affidavit cannot raise a genuine
issue of fact because it is merely a variance from earlier deposition testimony, and
therefore no reasonable jury could rely on it to find for the nonmovant.…[I]f it is
clear that an affidavit is offered solely for the purpose of defeating summary
judgment, it is proper for the trial judge to conclude that no reasonable jury could
accord that affidavit evidentiary weight and that summary judgment is
appropriate.
Jiminez v. All American Rathskellar, Inc., 503 F.3d 247, 253 (3d Cir. 2007) (citations omitted).
In order to determine if the affidavits should be disregarded, the Court must consider whether
they are inconsistent with the affiants’ prior deposition testimony, whether they merely clarify
facts and whether the affiants have provided satisfactory explanation for any inconsistencies.
See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 268-71 (3d Cir. 2010) (applying same
approach to exclude deposition errata sheet which contradicted deposition testimony with
“perfunctory” explanation that deponent was “confused and misunderstood some of the
questions”).
Plaintiffs argue that: 1) the amended affidavits cannot be considered sham affidavits
because the original affidavits were submitted prior to the depositions of the three individuals
and merely added details reflecting the deposition testimony; and 2) the amended affidavits are
not wholly inconsistent with the affiants’ deposition testimony, but are in fact consistent with
such testimony and even if the amended affidavits contain minor discrepancies, this would not
call for the exclusion of the affidavits.
Plaintiffs’ timing argument is incorrect as a matter of law. If an affiant makes a
statement in an amended affidavit that directly contradicts the person’s deposition testimony, the
statement would not be immune from review merely because the affiant had previously made the
same statement in an affidavit that was made and submitted to the Court (but not considered)
46
prior to the deposition. And if the amended affidavits merely add details reflecting the affiants’
deposition testimony, it seems unnecessary to make such additions because Plaintiffs could
simply cite the original affidavits and the deposition testimony. On the other hand, merely
because affidavits are submitted after deposition testimony does not automatically render them
sham affidavits. Rather, they must be examined to determine if they are inconsistent.
The real issue is whether the amended affidavits are consistent with the deposition
testimony. To the extent that they are, they will be considered. To the extent that they are not—
and because Plaintiffs have provided no explanations for any inconsistencies—they will not be
considered.
With respect to Mr. Moser, PPG contends that his statement that his enjoyment of the
environment has been diminished contradicts his deposition testimony, but its citations do not
support this contention. On page 56 of his deposition, Mr. Moser did not discuss the question of
his enjoyment of bird watching at all, and on page 80, he indicated that he was “looking
forward” to bird-watching along the Allegheny River again in the fall. However, this testimony
is not inconsistent with the statement in his affidavit that his enjoyment has been diminished by
his observation of pollution in the River and he was not specifically asked about his level of
enjoyment at his deposition. He also testified about his concerns regarding the harmful effects of
PPG’s discharges and other pollution on fish, birds, and other wildlife that live in the affected
area, and he testified about going boating with a neighbor downstream from the Site several
times a year and observing oil accumulating on the boat. (Moser Dep. at 38:22-39:10, 25, 40:1216, 51:15-52:25, 59:17-60:3, 71:10-24.) In addition, as noted above, an individual need not
abandon all activities at a site in order to demonstrate a cognizable injury. American Bottom
Conservancy v. U.S. Army Corps of Engineers, 650 F.3d 652, 658 (7th Cir. 2011); see also San
47
Francisco Baykeeper v. West Bay Sanitary Dist., 791 F. Supp. 2d 719, 749 (N.D. Cal. 2011)
(diminished use and enjoyment of waterways downstream from where defendant discharged
sanitary sewer overflows into river without a permit was sufficient).
With respect to Mr. Klaput, PPG contends that his statement about being concerned
regarding water pollution from heavy metals and a high pH is directly contradicted by his
deposition testimony, at which he expressed only “general concerns” about water quality and
could not identify the specific pollution coming off the Site. However, as Plaintiffs note, Mr.
Klaput described his concerns about high pH and heavy metals entering the River from the Site
at his deposition (Klaput Dep. at 30:2-31:13) and PPG offers no support for the argument that
Mr. Klaput must be able to identify specific forms of pollution in order to have standing. In
addition, PPG contends that Mr. Klaput had no knowledge of the Site until he received an email
from the Sierra Club, but Mr. Klaput testified that he is familiar with the affected area, that he is
concerned about the effects of pollution on individuals including children, and that his concerns
have led him to alter his activities by, for example, using only sit-upon kayaks. (Klaput Dep. at
11:1-7, 29:19-25, 51:13-52:4, 59:12-19, 76:5-25.)
PPG also contends that Mr. Klaput’s statement about his recreational activities on the
Allegheny River is directly contradicted by his deposition testimony, at which he indicated that
he kayaks upstream from the Site in Manorville or on a creek that does not flow past the Site,
that he bikes and bird-watches only on waterways upstream from the Site or on the opposite side
of the River and that he has no future plans to canoe or kayak on the River. However, as noted
above, Mr. Klaput testified that he launches his kayaks from a site directly across the River from
the PPG Site (Klaput Dep. at 73:13-74:11) and PPG offers no support for the contention that
being across the River is “too far away” to demonstrate standing. Mr. Klaput also stated that he
48
would “feel much better” about seeing other individuals using the area if the pollution from the
Site was cleaned up and that he has changed his own kayaking habits in order to minimize
contact with the water. (Id. at 59:12-19, 74:12-21.)
With respect to Ms. Kovacovsky, PPG contends that her statement about seeing offcolored sediments that appear contaminated along the River conflicts with her deposition
testimony, in which she indicated that she is not close to the River when she bikes past Rosston
along the trail. However, she also testified that she hikes and bikes on an unofficial trail near the
Rosston Marina, within view of the River and directly across from the Site. (Kovacovsky Dep.
at 40:13-23, 42:1-2, 8-12.) She also testified that she has driven past the Site and observed
PPG’s slurry waste since the 1960s. (Id. at 19:22-20:22, 22:13-23:7.) PPG contends that her
statement about her enjoyment being diminished is inconsistent with deposition testimony that
she is looking forward to biking, hiking and bird-watching in the future. However, at her
deposition, she was not asked about her level of enjoyment. In addition, as noted above, an
individual need not abandon all activities at a site in order to demonstrate a cognizable injury.
PPG has not demonstrated that the amended affidavits are sham affidavits. Rather, for
the most part, the affidavits are consistent with the affiants’ deposition testimony. Therefore,
they can be considered and, as indicated above, they are sufficient to support the standing of
these individuals.
To demonstrate that the injuries of Plaintiffs’ members are “fairly traceable” to PPG’s
actions, they “need only show that there is a ‘substantial likelihood’ that [PPG’s] conduct caused
plaintiffs’ harm.” Powell Duffryn, 913 F.2d at 72. Specifically, traceability may be established
“by showing that a defendant has 1) discharged some pollutant in concentrations greater than
allowed by its permit 2) into a waterway in which the plaintiffs have an interest that is or may be
49
adversely affected by the pollutant and that 3) this pollutant causes or contributes to the kinds of
injuries alleged by the plaintiffs.” Id. (footnote omitted). In this case, PPG’s discharges from the
Site are not authorized by an NPDES permit or any other permit, therefore the discharge of any
pollutants is unlawful. 33 U.S.C. § 1311(a) (without a permit, the discharge of any pollutant
shall be unlawful). For RCRA claims, legally cognizable injuries are those that “related directly”
to a defendant’s site. Interfaith/Honeywell, 399 F.3d at 257. As the district court held in that
case, the plaintiffs stated concerns for their health in light of their proximity to the site and
indicated that the site has prevented or curtailed their recreational or aesthetic interest in the site,
which was sufficient. Interfaith/Honeywell, 188 F. Supp. 2d 486, 500 (D.N.J. 2002).
Plaintiffs contend that: 1) PPG’s discharges have contributed to contamination of the
areas used and enjoyed by their members as PPG’s own monitoring data shows the presence of
high pH and arsenic, cadmium, copper, iron, lead and manganese; and 2) the pollutants
discharged by PPG (lead, arsenic, cadmium and copper) cause or are contributing to their injuries
as these metals have been recognized by both the EPA and Pennsylvania as toxic, 33 U.S.C.
§ 1362(13); 25 Pa. Code §§ 93.193.8c, table 5. They also argue that the injuries would be
redressable by a favorable decision, in that it is likely that their members would receive “some”
benefit from a declaratory judgment that PPG has violated the CWA, an order that PPG cease
unauthorized discharges and remediate the Site and civil penalties. Massachusetts v. EPA, 549
U.S. 497, 525-26 (2007); Powell Duffryn, 913 F.2d at 73 (injuries remedied “at least in part”).
PPG has not responded to these arguments.
Plaintiffs have demonstrated that their injuries are fairly traceable to PPG’s discharges at
the Site. Further, they have demonstrated that their injuries would be redressable by a favorable
decision. Thus, they have met the standard for individual standing.
50
Associational Standing
As noted above, an association has standing to bring suit on behalf of its members when
its members would otherwise have standing to sue in their own right, the interests at stake are
germane to the organization’s purpose, and neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit. Laidlaw, 528 U.S. at 181.
In this case, the individuals have standing, the interests at stake in the litigation are germane to
PennEnvironment and the Sierra Club’s purposes, which include their efforts to conserve, protect
and restore Pennsylvania’s waterways. Moreover, they have proffered evidence that PPG’s
failure to obtain permits and comply with those permits’ discharge, monitoring and reporting
violations interfere with the organizations’ efforts to assess the compliance status of
Pennsylvania dischargers with water pollution control laws and report such status to their
members, interfere with their efforts to propose legislation to amend the CWA or the CSL and
interfere with their efforts to bring litigation to prevent violations by PPG and thereby protect the
waters of the Allegheny River affected by the discharge from the PPG Waste Site. Finally,
neither the claims asserted nor the relief sought requires the participation of the individual
members. Where associational plaintiffs do not seek individualized relief for their members that
would require individualized proof, the participation of those members is not required. Hunt,
432 U.S. at 343-44. Thus, Plaintiffs have established associational standing. See
Interfaith/Honeywell, 399 F.3d at 257-58. See also PennEnvironment v. RRI Energy Northeast
Mgmt. Co., 744 F. Supp. 2d 466, 482 (W.D. Pa. 2010) (Hay, M.J.).
Standing in Their Own Right
Finally, Plaintiffs argue that they have standing in their own right because they have been
directly injured by PPG’s failure to apply for and obtain an NPDES permit, which would provide
51
much more information about the Site and allow these organizations to report to their members
and carry out related legislative and litigation activities. As noted above, they contend that,
although some monitoring and reporting obligations have been imposed on PPG through the
Administrative Order and the July 2009 Addendum, these obligations are not as extensive as the
obligation that would be imposed through an NPDES permit. See 40 C.F.R. Parts 122; 25 Pa.
Code §§ 92a.46, 92a.61.
Plaintiffs note that the NPDES permitting process would provide opportunities for them
to participate in the decision whether to grant the permit and on what terms. The application and
the draft permit must be made available to the public and a comment period provided before final
determinations are made by PADEP. 25 Pa. Code § 92a.82. Following the comment period,
PennEnvironment and Sierra Club could request a public hearing on the draft permit. Id.
Comments received during the comment period would be addressed by PADEP. 25 Pa. Code
§ 92a.86. The basis for the effluent limitations established in the draft and final permit by
PADEP would have to be made available to the public. 25 Pa. Code § 92a.53. Following the
issuance of a permit, PPG would be required to submit regular reports to the State (25 Pa. Code
§ 92a.61), which are available to the public (25 Pa. Code § 92a.81). This information would
allow plaintiffs to more fully assess PPG’s compliance with the CWA, CSL, the Administrative
Order, and the permit itself and afford them opportunities to engage in related public education
and advocacy. PPG’s failure to apply for and obtain a permit harms the plaintiffs’ advocacy
efforts by foreclosing a statutory mechanism “by which the public can both be educated and
engaged.”
PPG argues that because Plaintiffs have never requested publicly-available information
regarding the Site including DMRs and the progress reports PPG submits to PADEP pursuant to
52
the Administrative Order, they cannot demonstrate any injury for being unable to obtain further
information. Plaintiffs respond that they did obtain the publicly-available information through
their counsel and that, in any event, the information PPG would have to divulge in order to
obtain an NPDES permit is more extensive than what it submits now under the Administrative
Order: DMRs in addition to those that sample effluent from Outfall 001, additional seeps at the
Site which are not presently subject to any monitoring or reporting obligations, effluent
limitations beyond the three parameters (pH, oil and grease and TSS) identified in the
Administrative Order.
Plaintiffs contend that an NPDES permit would also include additional effluent
limitations. They note that PPG has acknowledged that the effluent guidelines in the USEPA
Region One Remediation General Permit (“RGP”) “are relevant to consideration” of the
discharges from the Site. (Shaw Treatment Plan Report at 53.)88 For Non-Petroleum Primarily
Heavy Metals Sites, the category that PPG considers applicable to the Site, the RGP establishes
effluent limitations for five of the metals currently monitored pursuant to the 2009
Administrative Order: antimony, arsenic, chromium, iron, and lead. (Id.; Remediation General
Permit at 12-13;89 Remediation General Permit App. III at 12.90) DMRs submitted pursuant to a
permit would necessarily include information about PPG’s compliance with these and any other
applicable effluent limitations. Such information is essential to the plaintiff organizations’
ability to monitor compliance and pursue appropriate follow-up legal and legislative action.
PPG also argues that Plaintiffs cannot demonstrate a sufficiently concrete injury because
they have not shown that their activities were “infeasible.” However, PPG cites no authority in
88
ECF No. 147 Ex. 1.
ECF No. 147 Ex. 6.
90
ECF No. 147 Ex. 7.
89
53
support of this argument. Plaintiff organizations contend that they have been deprived of
information and opportunities for public comment and response on PPG’s permit application,
which are required by governing regulations. Although the organizations have continued to
provide their members with information regarding water quality, they have not been able to
provide a full and complete accounting of the Allegheny River near the Site and the adjacent
wetlands because they lack the information that would be disclosed pursuant to a permit
application and issuance and through the resulting DMRs. Standing does not require that the
plaintiff organization’s activities be rendered totally “infeasible.” In Competitive Enterprise
Institute v. National Highway Traffic Safety Administration, 901 F.2d 107, 123 (D.C. Cir. 1990),
which PPG cited, the District of Columbia Circuit observed that informational injury requires
only evidence of “concrete ways in which their programmatic activities have been harmed.”
PPG also argues that Plaintiffs have not shown a “drain” on their resources, relying on Common
Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997). However, Plaintiffs note that a demonstrable
impact on resources is not a requirement of informational injury, only an example of one. See
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (“Such concrete and demonstrable
injury to the organization’s activities—with the consequent drain on the organization’s
resources—constitutes far more than simply a setback to the organization’s abstract social
interests”).
Plaintiffs argue that the injuries that they have cited have been held by courts as
conferring standing. In American Canoe Ass’n, Inc. v. City of Louisa Water and Sewer
Commission, 389 F.3d 536 (6th Cir. 2004), the Sixth Circuit concluded that the plaintiff
associations, including the Sierra Club, had standing based on the defendant’s failure to comply
with monitoring and reporting obligations, which resulted in a lack of information that affected
54
the plaintiffs’ organizational activities. The plaintiff organizations in that case alleged that the
defendant’s failure to fulfill its obligations deprived them of information that, in turn, prevented
them from providing information to their members and carrying out related legislative and
litigation activities. The Sixth Circuit found that the plaintiff organizations were injured due to
the interference with “their ability to propose legislation and to bring litigation based upon the
information collected by the defendants.” Id. at 546. The court did not require a showing of a
“drain” on resources or that plaintiffs’ activities had become infeasible. It accepted as sufficient
the plaintiffs’ demonstration of a negative effect on the activities “essential to their daily
organizational activities and to fulfilling their institutional goals.” Id.
Plaintiffs have demonstrated the same negative effects resulting PPG’s failure to apply
for and obtain an NPDES permit as required under the Administrative Order, the CWA, and the
CSL. Thus, they have met the requirements for demonstrating standing in their own right.
Therefore, Plaintiffs’ motion for partial summary judgment on the issue of standing will
be granted and PPG’s motion for summary judgment will be denied.
An appropriate order follows.
55
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PENNENVIRONMENT and SIERRA CLUB,
Plaintiffs,
)
)
)
vs.
)
)
PPG INDUSTRIES, INC., BOROUGH OF FORD )
CITY, and BUFFALO & PITTSBURGH
)
RAILROAD, INC.,
)
Defendants.
)
Civil Action No. 12-342
ORDER
AND NOW, this 28th day of May, 2014, for the reasons provided in the Memorandum
Opinion,
IT IS HEREBY ORDERED that the Motion for Partial Summary Judgment and
Declaratory Judgment on Article III Standing filed by Plaintiffs, PennEnvironment and Sierra
Club (ECF No. 116), is granted.
IT IS FURTHER ORDERED that the Motion for Summary Judgment on Standing filed
by Defendant PPG Industries, Inc. (ECF No. 137) is denied.
s/Robert C. Mitchell_________________
ROBERT C. MITCHELL
United States Magistrate Judge
56
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