PENNENVIRONMENT et al v. PPG INDUSTRIES, INC et al
Filing
192
MEMORANDUM OPINION & ORDER granting in part, denying in part 173 Motion for Preliminary Injunction filed by PENNENVIRONMENT, SIERRA CLUB. Signed by Magistrate Judge Robert C. Mitchell on 12/10/2014. (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 is Plaintiffs’ motion for preliminary injunction, which
seeks to compel PPG to apply for two National Pollutant Discharge Elimination System
(“NPDES”) permits regarding its discharges related to the Site and, in the interim, to comply
1
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.
with the requirements of the Administrative Order issued in 2009 by the Pennsylvania
Department of Environmental Protection (PADEP). For the reasons that follow, the motion will
be granted in part and denied in part.
Facts
The Site is located in North Buffalo and Cadogan Townships in Armstrong County,
Pennsylvania. It is bordered by Route 128 to the north, the Allegheny River to the south, Glade
Run, a tributary of the Allegheny River, to the west and a feature that PPG terms the “Drainage
Ditch” which flows southward and discharges into the Allegheny River to the east. (CWA
Compl. ¶ 15.)2 From 1949 until 1970, PPG used parts of the property to dispose of slurry waste
and solid waste from its former glass manufacturing facility across the river in Ford City,
Pennsylvania. (2009 Administrative Order at PADEP3).3
PPG created three slurry lagoons in an area formerly used as sandstone quarry in which
it deposited the slurry waste. (Treatment Plan Report, Former Ford City Facility Slurry Lagoon
Area, prepared by Shaw Environmental, Inc. (Dec. 2012) (“TPR”) at 2).4 Collectively, the
lagoons and surrounding area comprise an area of approximately 77 acres called the “slurry
lagoon area” (“SLA”) on the western part of the property. PPG also disposed of solid waste in a
landfill at the Site called the “solid waste disposal area” (“SWDA”) beginning in the 1920s until
1967. (2009 Administrative Order at PADEP3.) The Allegheny River lies to the south of both
the SLA and SWDA. Glade Run, a tributary to the Allegheny River, lies to the west of the SLA.
(TPR at 1.)
In June 1994, PADEP conducted sampling and a survey of the streams in and around the
2
Civ. A. No. 12-342, ECF No. 1.
PPG Br. Opp’n (ECF No. 178) Ex. A.
4
PPG Hr’g Ex. T.
3
2
Site. (ECF No. 119 Ex. 10.) The report of the survey stated that sediment samples collected
from Glade Run downstream of the SLA contained high levels of lead, chromium, arsenic,
barium, copper, nickel, aluminum and zinc. (Id. at PPG008633.) The report found that, of those
metals, the lead, arsenic, barium, and chromium sediment analysis exhibited hazardous waste
characteristics. The report also stated that there were no benthic macroinvertebrates present in
the substrate collected from Glade Run downstream of the SLA. The report compared sediment
samples from Glade Run downstream of the SLA with samples taken upstream of the SLA and
found that the downstream samples exhibited higher levels of lead, chromium, copper, nickel,
aluminum, and zinc. (Id. at PPG008634). The report concluded that the discolored seeps have a
visible impact on the stream and that the slurry lagoon is having an adverse impact on the stream
water quality and aquatic life. (Id. at PPG008635).
In a subsequent memorandum, PADEP noted that “the slurry lagoon seeps are having an
adverse impact on aquatic life in on-site stream.” (ECF No. 119 Ex. 11.) The memorandum
found that the data from PPG’s own risk assessment submitted to PADEP indicated that both
lead and antimony in sediments may “impact aquatic life and benthic organisms potentially
exposed to slurry lagoon sediments.” (Id. at PADEP000612.)
2009 Administrative Order
On March 9, 2009, PADEP issued an Administrative Order to PPG regarding the Site
which contained factual findings and imposed certain performance obligations. (2009
Administrative Order at PADEP2-9). In the letter accompanying the Administrative Order,
PADEP stated that “[t]he Department believes that the discharges coming from the site and
entering into the Allegheny River and Glade Run pose a significant threat to public health and
the environment.” (Id. at PADEP 1.)
3
The Administrative Order described the process by which precipitation becomes
contaminated with hazardous substances: “Precipitation which infiltrates the Slurry Lagoons and
the Landfill at the Site becomes contaminated with hazardous substances, as defined under the
Hazardous Sites Cleanup Act (HSCA) … and then is discharged into the waters of the
Commonwealth. This contaminated precipitation is known as ‘Leachate.’” (2009 Administrative
Order at PADEP4). The Order further stated that “PPG is allowing contaminated Leachate and
other liquids to be discharged from the Site into waters of the Commonwealth, resulting in
pollution of those waters of the Commonwealth.” (Id. at PADEP5). The Administrative Order
stated that the industrial waste discharges from the Site “are pollutional and have a very high pH
and contain metals and other toxic chemicals.” (Id. at PADEP4).
The Administrative Order imposed, inter alia, the following Performance Obligations
on PPG:
A. PPG shall conduct weekly monitoring and reporting of seeps, for flow, total
suspended solids, oil and grease, iron, aluminum, lead, chromium, antimony,
arsenic, and pH and report results to PADEP on a monthly basis;
C. Until such time as discharges, leachate, and seeps are collected and conveyed
to an industrial waste treatment facility and the discharge from said facility
is authorized by an NPDES permit, PPG shall implement interim abatement
measures;
D. PPG shall submit to the Department for review and approval a treatment plan
and schedule (“Treatment Plan”) to collect and treat all industrial waste
discharges, Leachate and seeps from the Site into the waters of the
Commonwealth.
(Id. at PADEP6-7 ¶¶ A, C, D.)
Samuel Harper, who prior to his retirement in October 2013 was the Program Manager
for the Water Management Program at PADEP (Harper Aff. ¶ 1),5 explains that he issued the
Administrative Order because of:
5
Pls.’ Reply Br. (ECF No. 180) Ex. 7.
4
PPG’s long-standing non-compliance with federal and state law. In particular, the
Department was concerned with PPG’s discharge of polluted or contaminated
leachate or wastewater to the waters of the Commonwealth and of the United
States. As early as 1971, the Department had ordered PPG to treat its discharges
from the Site or to eliminate the discharges. The site history was reviewed at the
time the Administrative Order was issued. In 2009 the PADEP, recognizing that
PPG continued to discharge pollutants from the Site into state and federal waters
without being authorized by an NPDES permit, issued the Administrative Order
directing PPG to apply for and obtain an NPDES permit.
The Administrative Order was issued to address PPG’s discharges to the
waters of the Commonwealth of Pennsylvania, particularly the Allegheny River
and adjacent wetlands, by requiring PPG to obtain and abide by the required
NPDES permit(s) for the Site.
At the time that the Administrative Order was issued, PPG was, and had
been for decades, required by law to have an NPDES permit for its discharges
from the Site. This obligation exists irrespective of PPG’s issuance in 2001 of a
notice of intent to remediate the Site under Pennsylvania’s Land Recycling
Program (“Act 2”), which had been available to PPG since early in 1995.
Remediation under Act 2 is voluntary. An NPDES permit is not. PPG’s
obligation to have an NPDES permit continues if PPG decides to abandon
voluntary remediation under Act 2.
The Administrative Order also included other requirements, such as the
construction of an interim treatment system, to minimize the impact of PPG’s
polluted discharges in the period before it applied for, obtained, and came into
compliance with an NPDES permit. These requirements were not intended to
either supplant or delay PPG’s compliance with the NPDES permitting system.
The Administrative Order was purely focused on requiring PPG to obtain
an NPDES permit. Nothing in the Order was intended to address or relate to Act
2.
(Harper Aff. ¶¶ 3-7.) Plaintiffs note that James Nairn, PPG’s expert on Act 2 (Nairn Dep. at
135-36),6 explained that Act 2 is a voluntary program, pursuant to which PPG can unilaterally
decide how little or how much remediation it wishes to undertake, and it could even walk away
without taking any action. (Nairn Dep. at 9, 13, 37.) He also indicated that, in his experience,
the longest remediation effort took “at least four or five years, maybe longer” (Nairn Dep. at 28),
6
ECF No. 180 Ex. 15.
5
but Plaintiffs note that it has been 13 years since PPG filed its notice of intent to remediate and it
is not close to completing any remediation action.
Interim Abatement System
PPG submitted its construction plan for the Interim Abatement System (“IAS”) on April
8, 2009, and submitted the Treatment Plan in June of 2009. (ECF No. 178 Exs. B, C.) On July
2, 2009, PADEP issued its approval (pursuant to a May 26, 2009 addendum to the IAS slightly
modifying the original IAS). (ECF No. 178 Exs. D, E.) The Addendum described the location
where pH was to be monitored, with pH of the treated discharges to be controlled in the range of
6 to 9 standard units. (ECF No. 178 Ex. E at 5.) PADEP’s July 2, 2009 approval contained
specific effluent limitations for the treated discharges from the IAS, including pH and Total
Suspended Solids (“TSS”), and also imposed metal monitoring requirements for this treated
discharge. (ECF No. 178 Ex. D at 3-4.)
The IAS has been in operation since 2010, and PPG represents that its operation will
continue as long as necessary pending full implementation of the permanent remedy. (O’Hara
Aff. ¶ 18.)7 Under the IAS, PPG constructed and has been operating a treatment system that
collects and treats specified seeps from the SLA and discharges the treated water through Outfall
001. (O’Hara Aff. ¶¶ 4-6, 18.) As required by the Administrative Order, PPG continues to
operate the IAS and submits progress reports and discharge monitoring reports (“DMRs”) to
PADEP. (O’Hara Aff. ¶¶ 4-5.) PPG states that its implementation of the IAS complies with
PADEP’s specific instructions in order to minimize any potential harm pending implementation
of the permanent remedy. (O’Hara Aff. ¶ 18.)
PPG indicates that, at no time since the IAS started operating in 2010 has PADEP ever
7
ECF No. 178 Ex. F.
6
penalized PPG for noncompliance with the Administrative Order or PADEP’s authorization for
the IAS, or indicated to PPG that it is dissatisfied with PPG’s efforts to comply. (O’Hara Aff.
¶¶ 4, 16, 18.) Its TPR indicated that pH levels have been in the required 6 to 9 standard units
range. (TPR at 48.)
Plaintiffs submit evidence that the pH values have frequently been measured above 9
standard units, and as high as 11.48 standard units. (ECF No. 105 at 36-37; Pls.’ Hr’g Ex. 18.)
PPG responds that these values were measured at the culverts, which are not owned by PPG and
are not regulated as part of the Administrative Order.
Plaintiffs also note that the leachate from the seeps of the SLA is contaminated with at
least aluminum, arsenic, chromium, iron, lead and antimony. (TPR at 38-39.) These metals are
not eliminated or treated by the IAS and are thus discharged into the Allegheny River.
Plaintiffs’ expert, Dr. Bruce Bell, states that, based on data collected by PPG, it is
discharging at average flow from Outfall 001 from over 347 to over 1,182 pounds of pollutants,
including metals, per day into the Allegheny River. (Bell Aff. ¶ 6.)8 PPG’s engineer, Patrick
O’Hara, responds that PPG’s discharges average less than 5.0 pounds per day and that the
discharge of these metals since inception of the IAS accounts for less than 1.0 pound per day.
(O’Hara Aff. ¶ 9.) O’Hara goes on to say that Dr. Bell has inappropriately characterized the
silica content as a “pollutant” as a substantial portion of the mass he reports appears to be
dissolved silicon or silica, which he avers is not regulated as a “priority pollutant” under the
CWA, nor regulated under Pennsylvania’s Act 2 program since its presence in the environment
is ubiquitous and is not subject to remediation standards; and that PADEP has not requested that
PPG monitor or report dissolved silicon/silica from Outfall 001 of the IAS. (O’Hara Aff. ¶¶ 10-
8
ECF No. 174 Ex. 2.
7
12.) Finally, he states that:
Silicon/silica in its solid form is an abundant, hard, unreactive, colorless
compound and is essentially non-toxic when ingested orally. Silica is one of the
most common elements on earth (it is commonly found in nature as quartz, as
well as in various living organisms) and it is the primary component of beach
sand and makes up a significant component of soils and river sediments in
Western Pennsylvania and throughout the world.
(O’Hara Aff. ¶ 13.)
Dr. Bell replies that Mr. O’Hara has not provided the basis for the discharge amounts he
recites. (Bell Aff. II ¶ 7.)9 More importantly, he notes that the CWA regulates all pollutants,
including “sand.” Moreover, the CWA does not recognize the concept of “priority pollutant.” It
does, however, recognize “toxic pollutants” such as most of the metals in PPG’s discharges. In
addition, PADEP has set interim limits on pH and TSS, neither of which is a toxic pollutant. He
concludes that “the vast majority of NPDES permits contain effluent limits for pollutants that are
not toxic or priority pollutants.” (Bell Aff. II ¶ 8.) Plaintiffs also note that PADEP has advised
PPG that one of the failings of its TPR is that the seep water contained a significant amount of
silicon and PPG’s:
proposed remedy does not include any removal of this material, which may cause
precipitation at the outfall or in the River. PPG should revise the Plan to include
additional tests to determine the appropriate treatment and removal of silicon to
prevent the precipitation of silicon in waters of the Commonwealth.
(ECF No. 178 Ex. G at 1 ¶ 1.)
PADEP’s Review of the TPR
PPG submitted the TPR outlining a proposed permanent collection and treatment plan to
PADEP for its review, approval and/or comments in December of 2012. (PPG Hr’g Ex. T.) On
May 13, 2014, PADEP issued its comments on the TPR. (ECF No. 178 Ex. G.) As expressly set
9
ECF No. 180 Ex. 6.
8
forth in its May 13, 2014 letter, PADEP provided numerous technical comments of a specialized
nature to PPG to address various questions concerning the remedies proposed for the Site in the
TPR. PADEP’s comments on the TPR provided a timeframe for advancing the development and
engineering of an acceptable remedy for the Site in an orderly fashion, including the approved
schedule for when PPG is to apply for a NPDES permit after approval of a permanent remedy.
(Id. at 1, 7.) PPG asserts that the purpose of PADEP’s review of the TPR is to ensure that a
comprehensive collection, treatment and NPDES permitted remedy will be implemented for the
Site based upon thorough engineering and technical design considerations. That remedy will
include not only segregation and permitting of stormwater currently mixing with affected waters,
but collection and treatment of the affected waters including stormwater runoff which are not
subject to the IAS prescribed by the Administrative Order. (Id.; See O’Hara Aff. ¶ 16.)
PPG timely submitted its response to PADEP’s comments on June 25, 2014 with a
supporting memorandum from ARCADIS (a multi-disciplinary environmental engineering firm
retained by PPG as a consultant with respect to the design and implementation of the permanent
plan for the Site) reporting initial data from ongoing treatability studies. (ECF No. 178 Ex. H.)
PPG asserts that the treatability studies will assist PADEP in determining the most appropriate
technology to address the discharge and to develop the effluent limitations required for the
NPDES permit for the treated discharges from the SLA. (O’Hara Aff. ¶¶ 12, 21.) PADEP and
PPG met on July 16, 2014 regarding revisions to the TPR. (O’Hara Aff. ¶ 21.) On July 18,
2014, PPG submitted a confirmation of the understandings reached at the July 16 meeting and
identified deadlines for delivery to PADEP of: additional investigatory work requested (in part
based upon Plaintiffs’ comments); design engineering work for the comprehensive collection
system; and treatability information to expedite NPDES treatment and effluent limits
9
discussions. (ECF No. 178 Ex. I.) PPG timely submitted all of these deliverables to PADEP in
August and September, 2014. (O’Hara Aff. ¶ 21.)
On October 27, 2014, PADEP and PPG held a meeting during which the issues regarding
the final TPR were limited to a very narrow list. (O’Hara Aff. ¶ 22.) PPG sent emails to PADEP
on October 30, 2014 providing a response to the remaining issues and stated it believed it is
feasible to submit a fully integrated and revised TPR for PADEP review and approval within 60
days of receiving notice of concurrence from the PADEP regarding the remaining issues or by
January 31, 2015, whichever is later. (ECF No. 178 Ex. J; O’Hara Aff. ¶ 23.) At the hearing,
PPG submitted a November 7, 2014 email response in which PADEP agreed to PPG’s proposed
schedule (PPG Hr’g Ex. Q) and PPG’s November 10, 2014 response in which it agreed to the
frequency of monitoring of the slope inclinometers as requested by PADEP (PPG Hr’g Ex. R).
Mr. Harper, who was not very involved in the case even during his last days when he was still
working at PADEP, admitted that he never cited PPG for failing to apply for a permit and is
unaware of its recent schedule with PADEP.
PPG contends that that submission of the NPDES application after approval of the
permanent remedy is appropriate because the application process is a multi-step procedure which
requires: (1) a Part I application; (2) a Part II application (for construction and operation of the
treatment system); and (3) a development plan for effluent limitations. (O’Hara Aff. ¶ 20.) Prior
to the submission of even Part I of the application, PADEP must approve the collection
configuration and size/capacity of the treatment system. (Id.) PPG indicates that it understands,
based on PADEP’s comments letter and PPG’s meetings with PADEP, that once the TPR is
approved, PPG and PADEP will have a pre-application meeting which will be followed by the
submission of a full and complete NPDES permit application based on the approved permanent
10
remedy to be implemented. (O’Hara Aff. ¶¶ 20-21, 23.) The application will encompass all
discharges from the SLA, including stormwater runoff. (Id. ¶ 16.)
Plaintiffs reply that “it is not possible to design a wastewater treatment system to comply
with an NPDES permit without knowing what effluent limitations will be imposed in the permit.
Designing treatment before knowing the effluent limitations that will be the goal of such
treatment is essentially putting the cart before the horse.” (Bell Aff. II ¶ 11.) With respect to
stormwater, Dr. Bell indicates that:
The Treatment Plan Report does not address stormwater discharges from the site
other than stormwater that is collected in the collection system. Nothing in the
Treatment Plan Report or subsequent submissions suggests that PPG plans to treat
either all stormwater discharged from the site or all stormwater discharged from
the site through point sources. Only if all such stormwater was collected and
treated through the same system as the leachate would the NPDES permit
described by PPG cover the stormwater. PADEP stated in its Comment 6 on the
Treatment Plan Report that all discharges of stormwater runoff need to be
included in an NPDES permit. PPG Exhibit G, p. 2. In response, PPG states that it
is its understanding that an NPDES permit for stormwater would only be
necessary for discharges from any “conveyance that is used for collecting and
conveying storm water” and that at this time it was not able to identify any such
conveyances. PPG Exhibit H, p. 4 of 31. Based on my observations of the site,
there are numerous culverts and ditches that discharge stormwater from the site
into water of the Commonwealth and the United States including the Drainage
Ditch. These are all point sources that require NPDES permitting. Nothing in
PPG’s Treatment Plan Report or subsequent submissions shows that PPG intends
to capture in its proposed collection and treatment system the stormwater that runs
off of the SLA and discharges through the culverts…. These culverts are point
sources and the stormwater discharged through them requires an NPDES permit.
(Bell Aff. II ¶ 16.)
Plaintiffs contend that, under Pennsylvania law, the issuance of a Water Quality
Protection permit occurs in two phases or parts. PADEP Permitting Policy and Procedure
Manual, October 1, 1997 (“PADEP Manual”), Section 110.10 The first part is the Part I (NPDES)
Permit, which represents “authorization to ‘discharge pollutants’ from ‘point sources’ to
10
ECF No. 180 Ex. 12.
11
‘navigable waters’ (i.e., waters of the Commonwealth) under the National Pollutant Discharge
Elimination System.” (Id. at 2.) Among other things, the Part I (NPDES) Permit “allows the
permittee to discharge” and “directs the permittee to achieve an acceptable quality of effluent
prior to discharge.” (Id. at 3; see also Harper Aff. ¶ 10.)
Issuance of the final Part I Permit is preceded by a public notice and comment period, as
well as potential review by the Environmental Protection Agency. (PADEP Manual, Section
201.2, at 47, 51-52, 55.) The second part of the process is the Water Quality Management Part II
Permit, which represents “authorization to construct and operate … industrial wastewater
treatment facilities.” (Id. at 2.) The Part II Permit is intended to ensure that the facilities
designed to collect, convey, and treat waste “will individually and collectively perform their
intended functions and thereby prevent pollution of waters of the Commonwealth.” (Id. at 5.) A
Part II Permit must be obtained where there will be “[c]onstruction and operation of wastewater
treatment facilities which will discharge to waters of the Commonwealth.” (Id. § 202.1, at 84;
see also Harper Aff. ¶ 11.) Physical construction of the facilities cannot be initiated until the Part
II Permit is issued. (Id. at 86.)
Plaintiffs note that PPG acknowledges the necessity of the Part I and Part II applications.
(ECF No. 178 at 8; O’Hara Aff. ¶ 20.) However, PPG also invokes a separate phase involving “a
development plan for the effluent limitations” (ibid.), which it does not explain. Plaintiffs
maintain that the Part I (NPDES) Permit sets the effluent limitations for the discharge at issue.
(Harper Aff. ¶ 11.) Thus, they argue that delaying application for the Part I (NPDES) Permit
delays the establishment of the effluent limitations for PPG’s discharges from the Site. This in
turn delays design of the treatment facilities needed to produce an effluent that complies with
those effluent limitations. (Bell Aff. II ¶ 11.)
12
PPG insists that it cannot apply for the Part I (NPDES) Permit without PADEP’s
approval of the TPR and PADEP’s corresponding approval of the size/capacity, scope, and
configuration of the permanent treatment system for the SLA. First, as Mr. Harper explains, the
approval of the TPR is not a prerequisite to PPG’s application for an NPDES permit and does not
“define the parameters” of that application. (Harper Aff. ¶ 10.) Second, this argument puts the
cart before the horse, as PPG is essentially arguing that it must configure its permanent treatment
system before PADEP establishes the effluent limits that the treatment system must meet. In
other words, the process proposed by PPG “would be to design and construct a treatment system
without any idea of the ultimate goals for that system.” (Harper Aff. ¶ 11; Bell Aff. II ¶ 11.)
PPG contends that, if it were required to submit a NPDES permit application (PPG Hr’g
Ex. P) now, it would be blank as to many of its critical components, would have no impact on the
current discharges from the IAS, and would serve no practical purpose other than to needlessly
complicate PADEP’s process. (O’Hara Aff. ¶¶ 15, 17.) PPG’s expert, James Kilburg, testified
similarly at the hearing.
Plaintiffs respond that PPG:
has all of the data needed to submit an NPDES permit application now and, to the
extent that it thinks it needs additional data, such data can be acquired in the 60day hiatus between the requested court order and the submission of the
application. The application calls for a general description of the treatment
system. PPG has a treatment system in place and can complete that portion of the
application by describing it. The fact that PPG may have to make significant
changes to the types and level of treatment in order to satisfy the effluent
limitations that will be established in an NPDES permit is not an impediment to
the submission of an NPDES application. Otherwise, no one would be able to
submit an application without knowing its outcome.
(Bell Aff. II ¶ 15.)
PPG states that Plaintiffs have also been involved throughout this process with PADEP as
their attorneys have been copied on all correspondence that PADEP has sent to PPG, including
13
PADEP’s comments on the TPR, and their counsel participated in a joint meeting with PADEP
and PPG. (ECF No. 178 Ex. G at 7.) PPG notes that the TPR and the investigation required for it
demonstrate that any discharges from the Site are not causing water quality standards to be
exceeded in the Allegheny River. (O’Hara Aff. ¶ 14.) PPG contends that the submission of a
NPDES permit now, rather than when PADEP deems it appropriate, will have absolutely no
practical effect upon the treatment system or the quality of the Allegheny River. (Id. ¶ 17.)
Plaintiffs reply that the discharges do cause harm to benthic organisms in the River even
if the water quality standards are not exceeded. (Bell Aff. II ¶ 9.) Moreover, the CWA requires
the imposition of either technology-based effluent standards or water-quality based ones,
whichever are more stringent. Dr. Bell states that, based on the modeling in the TPR,
technology-based standards would be more stringent, thus the fact that PPG’s discharges do not
cause violations of water-based quality standards is irrelevant and an NPDES permit would
impose technology-based standards. (Bell Aff. II ¶ 10.) Plaintiffs note that, in 2011, PADEP
told PPG it “is responsible to collect any and all contaminated waste water, ground water and
surface water that enter the surface Waters of the Commonwealth from this site, irrespective of
any demonstrable impact on the receiving waters.” (ECF No. 180 Ex. 14.) Finally, as explained
below, Plaintiffs note that requiring PPG to file an NPDES permit application now would have
an effect because it would trigger a mandatory response from PADEP within a scheduled
timeframe.
The State of Any Discharges from the Site
PPG states that it understands that PADEP is satisfied with its efforts to comply with the
interim effluent standards and monitoring requirements established by the 2009 Administrative
Order and the May 2009 Discharge Approval. (O’Hara Aff. ¶¶ 4, 6, 18-19.) PPG has been
14
monitoring and reporting data to PADEP and submitting monthly written progress reports
detailing its compliance with the Administrative Order pending approval of the final TPR. (Id.
¶ 4.) At no time during the process with PADEP over the last several years or through PPG’s
submission of its progress reports and DMRs has PADEP advised PPG that it considers it to be
in violation of the 2009 Administrative Order or the pH limitations contained therein. (Id. ¶¶ 4,
18.) PPG’s DMRs confirm that it is currently in compliance with the pH limitation imposed on
the outfall for the IAS. (Id. ¶¶ 5-6.) PPG’s DMRs, monthly progress reports and work required
by the approved Treatment Plan also confirm that the current discharges from the Site are not
impacting the water quality of the Allegheny River. (Id. ¶ 14.)
Plaintiffs respond that Mr. O’Hara does not state that PADEP is aware of the results of
the monitoring of the railroad culverts. They further state that, to the best of their knowledge,
PADEP only became aware of the pH values at the culvers as a result of Plaintiffs’ notice of
intent to sue regarding the violations, which was sent in November 2013. (Pravlik Aff. ¶ 26.)11
PPG notes that PADEP has been to the Site numerous times since the issuance of the
Administrative Order and the start-up of the IAS and is fully aware that Outfall 001 is located at
the neutralization tank of the IAS and is designated as the location for monitoring the pH effluent
limitation. (O’Hara Aff. ¶¶ 4-6.) Further, PADEP knows that PPG has been monitoring for
metals but not explicitly treating for metals during this interim abatement phase. (Id. ¶¶ 4-6, 9.)
PADEP is also aware of PPG’s monitoring of the railroad culverts about which Plaintiffs
complain (which was not part of the Administrative Order or the approved IAS but was
undertaken as part of the approved Treatment Plan investigation). (Id. ¶ 18.) At no time since
the issuance of the Administrative Order or the operation of the approved IAS has PADEP
11
ECF No. 180 Ex. 8.
15
advised PPG that it is dissatisfied with PPG’s efforts to comply with the Administrative Order.
(Id. ¶¶ 4, 6.) At no time during any of the recent various discussions and related written
communications between PPG and PADEP regarding treatability, engineering design and
collection have any issues arisen regarding a violation of water quality standards or PPG’s
compliance with its obligations under the IAS.
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
16
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
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
17
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
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.
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). On May 28, 2014, a Memorandum Opinion
and Order was entered, denying PPG’s motion and granting Plaintiffs’ motion (ECF No. 162).
On October 1, 2014, Plaintiffs filed a motion for preliminary injunction (ECF No. 173).
PPG filed its brief in opposition on October 31, 2014 (ECF No. 178) and on November 7, 2014,
Plaintiffs filed a reply brief (ECF No. 180). On November 13, 2014, a hearing was held, at
which five witnesses testified and arguments were presented. The motion is now ripe for
disposition.
NPDES Permits Under the CWA
18
As the Supreme Court recently stated:
Congress passed the Clean Water Act in 1972 to “restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.” 86 Stat. 816,
33 U.S.C. § 1251(a). A central provision of the Act is its requirement that
individuals, corporations, and governments secure National Pollutant Discharge
Elimination System (NPDES) permits before discharging pollution from any
point source into the navigable waters of the United States. See §§ 1311(a),
1362(12); EPA v. California ex rel. State Water Resources Control Bd., 426 U.S.
200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976).
Decker v. Northwest Envtl. Def. Ctr., 133 S.Ct. 1326, 1331 (2013).
To that end, Section 301(a) of the CWA provides that in the absence of a permit, except
under specified circumstances, “the discharge of any pollutant by any person shall be unlawful.”
33 U.S.C. § 1311(a). The “discharge of a pollutant” is defined by the CWA as “any addition of
any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). The term
“point source” means:
any discernible, confined and discrete conveyance, including but not limited to
any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged. This term does not include
agricultural stormwater discharges and return flows from irrigated agriculture.
33 U.S.C. § 1362(14). Finally, the term “pollutant” means “dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C. § 1362(6).
Section 1365(a) “authorizes private enforcement of the provisions of the Clean Water Act and its
implementing regulations.” Decker, 133 S.Ct. at 1334 (citation omitted).
PPG’s reference to a “priority pollutant” finds no basis in the CWA, which as cited,
requires an NPDES permit before a party may discharge any “pollutant,” a term which is broadly
defined to include rock and sand. The CWA does define the term “toxic pollutant,” 33 U.S.C.
19
§ 1362(13) and Plaintiffs note that many of the metals present in PPG’s discharges (antimony,
lead and zinc) are classified as “toxic pollutants,” 40 C.F.R. § 401.15(5, 44, 65).
Standard of Review
The Court of Appeals has held that:
A party seeking a preliminary injunction must show: (1) a likelihood of success
on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3)
that granting preliminary relief will not result in even greater harm to the
nonmoving party; and (4) that the public interest favors such relief. Allegheny
Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). Preliminary
injunctive relief is “an extraordinary remedy” and “should be granted only in
limited circumstances.”
Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (quoting American
Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994). The
Supreme Court has clarified that parties seeking a preliminary injunction are required to
demonstrate that “irreparable injury is likely in the absence of an injunction.” Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). Preliminary injunctions are usually
brought to preserve the status quo pending the outcome of a trial and are thus prohibitory in
nature. Kos, 369 F.3d at 708. However, Plaintiffs contend that, in the context of ongoing
environmental violations, courts have employed mandatory injunctions that require a party to
take action. United States v. Price, 688 F.2d 204, 212 (3d Cir. 1982).12 In Price, the United
States brought suit under the RCRA against owners and operators of a former commercial
landfill that was leaking contaminants into a water supply used by Atlantic City, New Jersey.
The Court of Appeals observed that:
The unequivocal statutory language and this legislative history make it
clear that Congress, by enacting section 7003, intended to confer upon the courts
12
Plaintiffs further note that the Pennsylvania legislature has recognized that mandatory
preliminary injunctions may issue under the CSL “where the circumstances require it or the
public health is endangered.” 35 Pa. C.S. § 691.601(b).
20
the authority to grant affirmative equitable relief to the extent necessary to
eliminate any risks posed by toxic wastes. Under section 7003, a court could not
order the cleanup of a waste disposal site which posed no threat to health or the
environment. There is no doubt, however, that it authorizes the cleanup of a site,
even a dormant one, if that action is necessary to abate a present threat to the
public health or the environment. It is also clear that if a threat to human health
can be averted only by providing individuals with an alternate water supply, that
remedy, in an appropriate case, may be granted under the authority of section
7003.
Id. at 713-14 (legislative citations omitted). Nevertheless, the court did not order the injunctive
relief sought because the application predated an amendment of the complaint that added 35
additional defendants and it was both impractical and unfair to grant an injunction binding only a
small minority of defendants. In addition, during the pendency of the appeal, New Jersey made
available to affected homeowners uncontaminated water and the EPA funded an initial study of
the toxic hazard posed by the contaminants.
Plaintiffs cite three additional cases in support of their motion and PPG responds that
they are distinguishable. United States v. Malibu Beach, Inc., 711 F. Supp. 1301 (D.N.J. 1989),
involved an action to clean up wetlands and the court ordered the defendant to remove fill
material that it had dumped in the wetlands. However, the court did not order the defendant to
apply for a permit. Plaintiffs contend that the court’s order to remove fill material obviated the
need for a permit, but that a permit is needed here because PPG’s violation of the CWA cannot
be fully remedied by removal of the unlawfully discharged pollutants or cessation of the
discharge as was possible in Malibu Beach. PPG argues that, in this case, it is already under an
order from PADEP to remediate the Site and to treat the discharges under the IAS until an
NPDES permit application can be submitted and approved.
In Romero-Barcelo v. Brown, 478 F. Supp. 646, 663-64 (D.P.R. 1979), rev’d in part on
other grounds, 643 F.2d 835 (1st Cir. 1981), rev’d sub nom. Weinberger v. Romero-Barcelo, 456
21
U.S. 305 (1982), the district court found that the Navy had violated the CWA by discharging
ordnance into the Atlantic Ocean during training operations without obtaining an NPDES permit.
The court ordered the Navy to apply for an NPDES permit (although it did not order the Navy to
cease its operations for national security reasons). The Navy took an appeal from the district
court’s decision, but it did not appeal the order requiring it to obtain an NPDES sewage
discharge permit. 643 F.2d at 840 n.6. The Navy argued that it did not have to apply for a
permit at all because its vessels operated outside the three-mile geographical limit of the CWA
and the Secretary of Defense exempted the vessels from marine sanitations requirements under
the authority of the CWA, but the court found that enough activity occurred within the
“territorial seas” to fall within the CWA.
The Supreme Court reversed the decision of the Court of Appeals for the First Circuit,
which had erroneously concluded that the CWA withdrew federal courts’ equitable discretion to
order any relief other than an immediate prohibitory injunction. The Court noted that the
integrity of the nation’s waters is the purpose of the CWA, not the permitting process.
This purpose is to be achieved by compliance with the Act, including
compliance with the permit requirements. Here, however, the discharge of
ordnance had not polluted the waters, and, although the District Court declined to
enjoin the discharges, it neither ignored the statutory violation nor undercut the
purpose and function of the permit system. The court ordered the Navy to apply
for a permit. It temporarily, not permanently, allowed the Navy to continue its
activities without a permit.
456 U.S. at 315 (footnotes omitted). In other words, although the Supreme Court held that a
federal court has discretion regarding the issue of whether to issue an injunction upon finding a
violation of the CWA ordering the violator to immediately cease its polluting activity, it also
observed that requiring the violator to apply for an NPDES permit is one of the appropriate
actions that a court may legitimately take in the interim.
22
Finally, in American Canoe Ass’n, Inc. v. Murphy Farms, Inc., 1998 U.S. Dist. LEXIS
21402 (E.D.N.C. Dec. 22, 1998), appeal dismissed in part, remanded in part, 2000 U.S. App.
LEXIS 13033 (4th Cir. Mar. 29, 2000), the court ordered the defendant swine facility to apply
for and obtain an NPDES permit because it was making unauthorized discharges of waste into
navigable waters. The defendant argued that it did not have to apply for a permit because it was
not a concentrated animal feeding operation, but the court agreed with the plaintiffs that it was
PPG argues that, in American Canoe, the state agency (NCDENR) was a participant in
the court proceedings so that the court was not ordering relief that would affect absent
administrative agencies (but PADEP is not a party to these proceedings); that NCDENR was not
involved in any administrative enforcement action (unlike PADEP in the instant matter); and that
both the defendant and NCDENR took the position that the defendant did not have to apply for
an NPDES permit (whereas PPG admits that it is required to do so, at the appropriate time).
Plaintiffs respond that NCDENR was not a party to the proceedings (it merely filed an
amicus brief) and in fact the court denied the defendants’ motion to join NCDENR in the case
(Pravlik Aff. ¶ 23; ECF No. 180 Ex. 11); the fact that a state agency will eventually be involved
in the permit process does not require the court to exercise jurisdiction over that agency—
PADEP’s authority derives from state and federal law, not the order Plaintiffs request from this
Court; PPG’s acknowledgment of its legal obligation does not mean that it has complied with the
law, as it has never sought an NPDES permit in the 40 years since its discharges were first noted;
NCDENR had in fact taken administrative enforcement action including imposing civil penalties
and threatening revocation of the defendants’ non-discharge permit (the state’s alternative to an
NPDES permit) in the event of further discharge (Pravlik Aff. ¶ 24; ECF No. 180 Ex. 16).
Plaintiffs argue that: 1) they are likely to prevail on the merits of their claims, given that
23
the Court has determined that they have standing to bring these claims, PPG admits that it is
discharging pollutants into the Allegheny River without an NPDES permit and that it intends to
seek such a permit from PADEP and it is discharging water into the River with pH values in
excess of those set by the Administrative Order and is thus in violation of that order; 2)
irreparable harm is being done to the environment and Plaintiffs are harmed by PPG’s delay in
seeking a permit; 3) the requested injunction will not harm PPG; 4) the granting of the injunction
furthers the public interest; and 5) the Court should issue the injunction now to prevent the
ongoing and irreparable harm caused by PPG’s discharges.
PPG responds that: 1) the requested injunction is unnecessary and unhelpful in that the
permit application cannot currently be completed and PPG will file the application at the
appropriate time as indicted by PADEP; 2) Plaintiffs have failed to meet their heavy burden for
the issuance of a mandatory injunction in that filing for an NPDES permit is a procedural
requirement under the CWA and injunctive relief is inappropriate to address procedural
violation; 3) the irreparable harm contention cannot be sustained given that the lead case has
been pending for over two years; 4) PPG will be harmed by having to go through the
meaningless gesture of filing an incomplete permit application; and 5) Plaintiffs have not
explained why the public interest is not served by allowing the duly authorized agency to
complete its work on the schedule it has defined.
In a reply brief, Plaintiffs argue that: 1) PADEP’s oversight of the 2009 Administrative
Order is not a basis for denying the request for injunctive relief and the Court has already
rejected PPG’s arguments when made in the context of a motion to dismiss based on primary
jurisdiction; 2) PADEP does not have to approve the TPR as a prerequisite for an NPDES permit
and the filing of an application would trigger a policy requiring PADEP to respond within 188
24
business days; 3) the requested relief is appropriate and consistent with established case law:
PPG is not liable for the “mere procedural violation” of failing to file for an NPDES permit, but
for its discharge of pollutants without a permit, PPG cites a case in which a preliminary
injunction was denied because the plaintiff failed to show that the discharges were likely to recur
and PPG falsely claims that an injunction would fundamentally constitute a finding on the
ultimate merits of some of Plaintiffs’ claims; and 4) contrary to PPG’s argument, the four factors
for the issuance of a preliminary injunction have been met.
Likelihood of Success on the Merits
Plaintiffs contend that they have demonstrated a likelihood of success on the merits,
given that they have established their standing to bring the cases, PPG has admitted that it is
discharging pollutants without an NPDES permit and PPG has indicated that it intends to apply
for a permit at some point. PPG responds that filing for an NPDES permit is a mere procedural
requirement under the CWA and injunctive relief is inappropriate to address procedural
violations. PPG’s argument is not availing—filing for an NPDES permit is not a mere
procedural technicality, but the means by which the CWA is enforced. See International Union,
United Auto. Aerospace & Agricultural Implement Workers of America, AFL-CIO v. Amerace
Corp., 740 F. Supp. 1072, 1086 (D.N.J. 1990). Therefore, this factor weighs in favor of granting
injunctive relief.
Irreparable Harm
Plaintiffs contend that harm to the environment has been held to be irreparable by its very
nature. Natural Resources Defense Council v. Texaco Ref. & Mktg., Inc., 906 F.2d 934, 941 (3d
Cir. 1990). “Environmental injury, by its nature, can seldom be adequately remedied by money
damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is
25
sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction
to protect the environment.” Amoco Production Co. v Village of Gambell, Alaska, 480 U.S.
531, 545 (1987).
PPG does not dispute this argument, but argues that Plaintiffs cannot demonstrate that the
harm is “immediate” because they did not file for a preliminary injunction for two years after
instituting this action. Plaintiffs explain the delay by indicating that the parties had been
involved in settlement negotiations and subsequently various other motions were pending before
the Court that had to be resolved first. (Pravlik Aff. ¶¶ 4-20.) The Court of Appeals has held
that “[d]elay in seeking enforcement of [a plaintiff’s] rights tends to indicate at least a reduced
need for such drastic, speedy action” but that “delay may be excused where the party seeking a
preliminary injunction delays only in the reasonable belief that negotiations may resolve the
dispute.” Lanin v. Borough of Tenafly, 515 F. App’x 114, 118 (3d Cir. 2013). PPG contends
that Plaintiffs could have filed the preliminary injunction motion despite the pending motions to
dismiss and for summary judgment.
The Court finds this discussion irrelevant to the instant proceedings. As noted above,
harm to the environment has been classified as irreparable. That harm did not become reparable
(or “less immediate”) because of Plaintiffs’ delay in filing for a preliminary injunction, whatever
the reason. PPG’s citations to other cases, not involving environmental issues, are not on point:
Lanin involved residents challenging an ordinance that turned the road in front of their house
into a one-way street; and Patel v. St Vincent Health Ctr., Civ. A. No. 1:12-298 (W.D. Pa. Aug.
28, 2013), involved a student who was terminated from a 4-year medical residency program.
Finally, although Defenders of Conewango Creek v. Echo Developers, LLC, Civ. A. No. 1:06242 (W.D. Pa. Oct. 11, 2007), was an environmental case, the court’s finding of lack of
26
irreparable harm was based upon its conclusion that the plaintiff had failed to demonstrate that
any harm was likely to befall the riffleshell mussel that the plaintiff was purporting to protect.
Thus, the court’s conclusion was primarily based on the plaintiff’s failure to show likelihood of
success on the merits.
Plaintiffs have demonstrated that PPG’s continuing discharge of pollutants into the
Allegheny River constitutes irreparable harm to the environment. Therefore, this factor weighs
in favor of granting injunctive relief. As Plaintiffs note, Rule 65 sets no time limit on filing for a
preliminary injunction.
Harm to PPG
Plaintiffs contend that PPG will suffer no harm from submitting an NPDES permit
application. PPG argues that ordering it to submit an application for an NPDES permit now will
delay or somehow interfere with its ongoing collaborative efforts with PADEP. It cites no
authority in support of the contention that such delay or interference, even if it occurred,
constitutes “harm.” The Court finds that this factor favors granting Plaintiffs’ request for an
injunction.
Public Interest
Plaintiffs argue that the public interest will be served by requiring PPG to comply with
the application process and end its pollution of the Allegheny River. PPG has not specifically
responded to this argument. The Court finds that this factor favors granting Plaintiffs’ request
for an injunction.
Other Issues
PPG devotes the majority of its brief and argued at the hearing that being required to file
for an NPDES permit at this time would be “a futile act,” for several reasons: 1) PADEP has not
27
ordered it to do so and has not cited it for failing to do so; 2) the mere filing an application would
not change the status quo, as it would simply place the issue before PADEP, where it already is;
3) in fact, PPG would be unable to complete the form, because it lacks all of the data necessary
to indicate water volume and chemical components; 4) as a result, PADEP would likely reject
the application as incomplete; and 5) PPG is working with PADEP and the plan is for the
submission of an NPDES permit application at the appropriate time, namely following its filing
of a revised TPR and a pre-application meeting with PADEP.
These arguments are unavailing. First, “futility” is not a factor for a court to consider
when presented with a motion for a preliminary injunction. Therefore, all of PPG’s subarguments are irrelevant. Moreover, even if they are taken into consideration, Plaintiffs do not
have the burden of demonstrating that an injunction would not be futile.
With respect to the specific arguments presented, Plaintiffs have responded to show that
PPG is obfuscating the issues in this case. PPG’s requirement to file for an NPDES permit is not
based on an order from PADEP, nor is its failure to file for such a permit excused by the lack of
an order from PADEP. Rather, this responsibility is the fundamental requirement of the CWA.
See 33 U.S.C. § 1311(a) (“except [under specified circumstances, including an NPDES permit]
the discharge of any pollutant by any person shall be unlawful.”)
Plaintiffs contend that filing an application would change the status quo, in that it would
require PADEP to respond to the application within 188 business days, unlike PPG’s voluntary
remediation efforts, which (although recently more active) appear to have no timing
requirements. Pursuant to Pennsylvania Executive Order 2012-11 (July 24, 2012),13 PADEP was
required to establish, among other things, predictable process times for permit applications that
13
ECF No. 180 Ex. 13.
28
would be covered by a “permit decision guarantee.” The resulting Policy for Implementing the
Department of Environmental Protection (Department) Permit Review Process and Permit
Decision Guarantee (November 2, 2012)14 sets forth guarantee time frames for the processing of
applications. Those time frames are the “length of processing time that a permit decision will be
guaranteed by the Department, provided an applicant submits complete, technically adequate
applications that address all applicable regulatory and statutory requirements in the first
submission.” (Id. at 1.) The permit decision guarantee time frame for NPDES applications
relating to industrial wastewater facilities is 188 business days. (Id. at 24.)15 Thus, rather than
causing a delay, Plaintiffs contend that requiring PPG to apply for the NPDES permit would
trigger PADEP’s permit decision guarantee time frame and result in issuance of an NPDES
permit with effluent limitations sooner rather than at some indefinite time in the future as the
matter continues to linger as it has for decades.
Plaintiffs note that PPG has not explained why it cannot fill out the application using its
existing IAS and modify it as appropriate (Bell Aff. II ¶ 15). Moreover, even if it could not
proceed in this fashion, PPG has not made a credible argument that, 42 years after first being
notified of its violations and five years after the Administrative Order issued, it still lacks
sufficient information to complete an NPDES permit application. Finally, there is no basis for
concluding that PADEP would reject the application as incomplete. PPG is counseled not to
attempt to submit an incomplete application to induce PADEP to reject it.
With respect to PPG’s final argument, although PPG’s recent voluntary remediation
14
ECF No. 180 Ex. 17.
Plaintiffs note that PPG acknowledged this Policy in its reply brief in support of its motion to
dismiss (ECF No. 45 at 25 & Ex. B), in which it argued that PADEP was working within its
published guidelines in reviewing PPG’s change to an already approved leachate collection
system within 186 business days of its submission.
15
29
efforts and cooperation with PADEP is commendable, such actions do not supplant PPG’s
responsibility under the CWA. As one district court held, when presented with this argument:
Defendants suggest that there is no need to order a preliminary injunction
because they are taking adequate steps to remedy the harm. Together with the
DEQ and the City of Warrenton, defendants have developed a public-private
partnership that intends to reroute defendants’ discharge to the Columbia River by
March 2006.
This court finds no credible assurance that defendants will be able to
discharge to the Columbia River by next spring. In September 2004, defendants
argued that they would be discharging to the Columbia River by March 2005.
They failed to do so. Moreover, even if defendants were able to reroute their
discharges by next spring, that does not affect the current irreparability analysis.
See Piney Run Pres. Ass’n v. County Comm’rs of Carroll County, Md., 82 F.
Supp. 2d 464, 473 (D. Md. 2000) (finding that, despite the sewage treatment
plant’s efforts to mitigate environmental damages, injunctive relief was
appropriate because the plant continued to violate the CWA), vacated on other
grounds, 268 F.3d 255 (4th Cir. 2001). Obviously, the possibility that defendants
may cease their unlawful discharges by next spring does not bear on whether the
harm they are inflicting now is irreparable.
Oregon State Public Interest Research Group v. Pacific Coast Seafoods Co., 374 F. Supp. 2d
902, 906 (D. Or. 2005) (internal citations omitted). In this case, PPG has been working with
PADEP since 2001 and until recently, there has been little progress toward a permanent
remediation. In addition, PPG has not even provided a date by which it intends to file for an
NPDES permit or otherwise cease violating the CWA (it merely provides a date by which its
final TPR is due to PADEP, which it indicates will be followed at some point by a “preapplication meeting”). At the hearing, even PPG’s engineer, Mr. O’Hara, admitted that the TPR
contains no public notice or comment period but that filing an NPDES permit application would
trigger these procedural elements.
Plaintiffs have demonstrated that a likelihood of success on the merits, irreparable harm,
lack of harm to PPG and the public interest all favor the granting of its motion for a preliminary
injunction to compel PPG to apply for an NPDES permit. PPG’s arguments to the contrary are
30
not supported and are mostly irrelevant. Therefore, in this respect, its motion will be granted.
Based upon PPG’s representation that it will submit its final treatment plan report to
PADEP on or before January 31, 2015 and because this matter must move forward, PPG will be
permitted until March 31, 2015 to file its application for an NPDES permit with PADEP. This
date shall not be extended, however, even if PADEP extends the time in which PPG is to file its
final treatment plan report.
On the other hand, Plaintiffs have not demonstrated that PPG has violated the 2009
Administrative Order by discharging wastewater with pH values exceeding the permissible range
of 6 to 9 standard units. Plaintiffs appear to be focusing on the discharge levels at the culverts,
which are not included within the Administrative Order. The parties dispute when PADEP
became aware of the pH values from the monitoring at the culverts, but even by Plaintiffs’
reckoning, “PADEP … became aware of these pH violations as a result of plaintiffs’ November
2013 notice of intent to sue regarding the violations.” (ECF No. 180 at 21 n.17 (citing Pravlik
Aff. ¶ 26)). Yet Plaintiffs do not dispute that PADEP has taken no action to assert that PPG is in
violation of the Administrative Order.
Unlike the question of whether PPG is violating the CWA, the issue of whether PPG is
violating the Administrative Order should be decided by the agency that issued the order, namely
PADEP. If PADEP has been aware of pH violations for nearly a year and has not concluded that
PPG is violating its Administrative Order, it would be anomalous for this Court to intervene in
that process and conclude otherwise. Therefore, Plaintiffs’ request for an injunction requiring
PPG to comply with the Administrative Order will be denied.
An appropriate order follows.
31
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 10th day of December, 2014, for the reasons provided in the
Memorandum Opinion,
IT IS HEREBY ORDERED that the Motion for Preliminary Injunction filed by Plaintiffs,
PennEnvironment and Sierra Club (ECF No. 173), is granted in part and denied in part, as
follows:
The motion for a preliminary injunction regarding an application for an NPDES permit is
GRANTED and by March 31, 2015, PPG shall file an application for an NPDES permit with
PADEP. As a result of the issuance of this mandatory injunction requiring PPG to file an
application for an NPDES permit with PADEP, an action it has committed to perform although
the timing is uncertain, PPG will suffer no injury if it is determined that this injunction was
improvidently granted, and a result no security will be required to be posted by Plaintiffs
pursuant to Federal Rule of Civil Procedure 65(c).
The motion for a preliminary injunction to compel PPG to comply with the 2009
Administrative Order issued by PADEP is DENIED.
s/Robert C. Mitchell_________________
ROBERT C. MITCHELL
United States Magistrate Judge
32
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