PENNENVIRONMENT et al v. PPG INDUSTRIES, INC et al

Filing 258

MEMORANDUM OPINION & ORDER denying 244 Motion for Reconsideration re 236 Order on Motion for Joinder filed by PENNENVIRONMENT, SIERRA CLUB. Signed by Magistrate Judge Robert C. Mitchell on 2/25/2016. (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.
Presently pending before the Court is a motion filed by Plaintiffs for the Court to
reconsider the November 19, 2015 order which granted PPG’s motion to file a Third-Party
Complaint against A&S America, Inc., d/b/a American Standard Brands a/s/i Eljer Inc., Eljer
Industries, Inc. and Eljer Plumbingware, Inc. (collectively, “Eljer”) pursuant to Rule 14(a). For
the reasons that follow, the motion will be denied.

Facts
The Site is located in North Buffalo and Cadogan Townships in Armstrong County,
Pennsylvania. It is bordered by Route 128 to the north, the Allegheny River to the south, Glade
Run, a tributary of the Allegheny River, to the west and a feature that PPG terms the “Drainage
Ditch” which flows southward and discharges into the Allegheny River to the east. (Revised
Treatment Plan Report at 3.)1 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.)2
Plaintiffs’ two RCRA complaints describe four contiguous areas: 1) the three slurry
lagoons in an area formerly used as a sandstone quarry in which PPG deposited slurry waste, the
lagoons and surrounding area comprising an area of approximately 77 acres called the “slurry
lagoon area” (“SLA”); 2) a landfill at the Site called the “solid waste disposal area” (“SWDA”)
in which PPG deposited waste beginning in the 1920s until 1967; 3) an area called the Eljer
Landfill; and 4) the ballfield area. (ECF No. 90 ¶¶ 17-18; ECF No. 91 ¶¶ 19-20; Civ. A. No. 131396 ECF No. 1 ¶¶ 21, 25.)
Plaintiffs have described the Eljer Landfill Area as a landfill which lies to the east of the
SWDA and which was used and occupied by Eljer, Inc. from approximately 1988 through 2000
pursuant to a permit issued by Pennsylvania’s Department of Environmental Resources (now the
Pennsylvania Department of the Environmental Protection “PADEP”) for the beneficial reuse of
waste. (Civ. A. No. 13-1396, ECF No. 1 ¶¶ 21, 25; Civ. A. No. 12-342, ECF No. 91 ¶ 19.)3
PPG indicates that Eljer Industries, Inc. and/or Eljer Plumbingware, Inc. disposed of
1

ECF No. 207 Ex. 1.
ECF No. 207 Ex. 3.
3
In the order, the Court mistakenly indicated that Plaintiffs described this area as having been
owned by Eljer. The land was owned by PPG and then donated to Ford City.
2

2

waste in the Eljer Landfill Area from 1988 until 1998 from its manufacturing facility located in
Ford City, Pennsylvania. (See ECF No. 201-2 at ¶ 2; ECF No. 216 Exs. 2, 3, 12), that the Eljer
Landfill was closed in approximately 1998 by regrading and adding soil cover in accordance
with a closure plan that the PADEP approved in 1988, and that the area is now owned by Ford
City.
Plaintiffs state that Eljer deposited off-spec ceramic plumbing waste (i.e., toilets, sinks)
from its Ford City manufacturing plant pursuant to a beneficial reuse permit issued by the
PADEP. The intent of the project was to use the waste as fill material to level and stabilize a
portion of the Site so that it could be used for the expansion of the ballfield area and community
park. In 1998, Eljer notified PADEP that it would no longer deposit waste in the Eljer Landfill
Area and that it planned to close the beneficial reuse area in accordance with the plan approved
by PADEP. In 2000, PADEP notified Eljer that it had closed the beneficial reuse area to
PADEP’s satisfaction. (ECF No. 234 Ex. 1.) The Eljer waste was used as fill material on
approximately 2½ acres. (ECF No. 234 Ex. 2.)
Plaintiffs state that, pursuant to Pennsylvania regulations, a final closure certification will
not be issued unless the operator demonstrates that no further remedial action is required and that
the facility is not causing adverse effects on the environment. 25 Pa. Code § 287.34(c)(3, 4).
However, PADEP’s letter to Eljer in 2000 stated that PADEP’s “acceptance of your Closure
Report does not constitute a waiver or release of liability for any past, present, or future
contamination at the site.”
PPG notes that Plaintiffs have alleged that the Eljer Landfill Area is part of the larger Site
that they claim presents an imminent and substantial endangerment to human health and/or the
environment under Section 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B), due to the

3

alleged level of contaminants including arsenic, chromium, lead, manganese, copper, zinc,
mercury, antimony, barium, beryllium, iron, vanadium, aluminum, total dissolved solids or salts,
and semivolatile organic compounds. (See ECF No. 91, passim).
PPG contends that Eljer must give permission and/or consent to enter and disturb any
portion of the soil cover of the Eljer Landfill Area as a result of its closure requirements
with PADEP, including, but not limited to, giving permission and/or consent to perform
investigative activities. Plaintiffs respond that, when PPG and Ford City made this claim in
2013, they contacted Eljer’s counsel, who responded that Eljer has no interest in this property
and thus was in no position to grant or deny access to it. (ECF No. 234 Ex. 5.) Plaintiffs
forwarded this response to counsel for PPG and Ford City on July 16, 2013 (ECF No. 234 Ex.
6), and thus they contend that PPG was unquestionably aware, as of that date, that Eljer had no
interest in the Site that would require anyone to obtain its permission to enter it.
PPG contended that, if it was ordered to undertake any action, or incur any costs with
regard to the property encompassed within the Eljer Landfill, then Eljer is liable over to PPG for
contribution and indemnification for all or a portion of any damages and relief awarded to the
Plaintiffs and against PPG relating to the Eljer Landfill. Thus, it requested leave to file a ThirdParty Complaint under Federal Rule of Civil Procedure 14(a) naming Eljer as a Third-Party
Defendant based on PPG’s claims for contribution and indemnification.
Relevant Procedural History
On February 28, 2013, PPG filed a motion to dismiss on various grounds, including
dismissal of the Eljer Landfill Area (and the ballfields) from the scope of the complaints (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

4

(ECF No. 66).
On March 31, 2015, PPG filed a motion for partial summary judgment to remove from
the cases the Eljer Landfill Area and the ballfield area (ECF No. 208). On August 31, 2015, the
Court issued a Memorandum Opinion and Order which denied PPG’s motion for partial
summary judgment, thus leaving the Eljer Landfill Area as part of the case.
On October 14, 2015, PPG filed a motion to join Eljer as a necessary party under Rule 19
or to implead it as a third-party defendant under Rule 14(a) (ECF No. 230). On October 30,
2015, Plaintiffs filed a brief in opposition (ECF No. 234) and on November 13, 2015, PPG filed
a reply brief (ECF No. 235). On November 19, 2015, an order was entered (ECF No. 236),
granting PPG’s motion insofar as it sought leave to add Eljer as a Third-Party Defendant. PPG
filed its Third-Party Complaint against Eljer on December 3, 2015 (ECF No. 240).
Plaintiffs filed a motion for reconsideration on December 11, 2015 (ECF No. 244). PPG
filed a brief in opposition on January 11, 2016 (ECF No. 250) and Plaintiffs filed a reply brief on
January 15, 2016 (ECF No. 251).
Standard of Review
The Court of Appeals has stated that:
“The purpose of a motion for reconsideration,” we have held, “is to correct
manifest errors of law or fact or to present newly discovered evidence.” Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a judgment
may be altered or amended if the party seeking reconsideration shows at least one
of the following grounds: (1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the court granted the
motion for summary judgment; or (3) the need to correct a clear error of law or
fact or to prevent manifest injustice. See North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). “It is
improper on a motion for reconsideration to ask the Court to rethink what [it] had already

5

thought through rightly or wrongly.” Glendon Energy Co. v. Borough of Glendon, 836 F. Supp.
1109, 1122 (E.D. Pa. 1993) (internal citation and quotes omitted). In this case, Plaintiffs cite no
intervening change in the law or availability of new evidence, so their motion raises only a claim
that the Court committed a “clear error of law or fact.”
In their motion, Plaintiffs argued that: 1) PPG’s Third-Party Complaint against Eljer
would have to be dismissed for failure to provide pre-suit notice of a RCRA claim; 2) the Court
misunderstood their argument in that Eljer is not contributing to imminent and substantial
endangerment of the environment and PPG can always seek contribution from Eljer later; 3) PPG
misled the Court by stating that no discovery has been conducted on the Eljer Landfill Area; 4)
impleading Eljer would delay matters in this case as Eljer would need time to catch up, which
would subject the environment to further harm in the meanwhile; and 5) in the alternative, the
Court should bifurcate the proceedings by separating the RCRA claims relating to the SWDA
from the others and expedite the schedule for Eljer’s participation.
In response, PPG noted that: 1) it is not raising a RCRA claim against Eljer, only state
law claims for contribution and indemnity, so pre-suit notice was not required and Plaintiffs have
no standing to submit arguments on Eljer’s behalf; 2) reconsideration is a difficult standard to
meet and Plaintiffs have failed to do so; and 3) Plaintiffs cite improper factors concerning
bifurcation and fail to meet them.
In their reply brief, Plaintiffs have withdrawn the motion to bifurcate and their first
argument about pre-suit notice given that the Third-Party Complaint does not contain a RCRA
claim. However, they maintain that PPG’s statement about “no discovery” having taken place
concerning the Eljer Landfill Area has led to Eljer’s unnecessary impleader.
Plaintiffs contend that PPG misrepresented that they had conducted no discovery with

6

respect to the Eljer Landfill Area, which led the Court to believe that Plaintiffs bore part of the
responsibility for the delay in impleading Eljer, whereas the fact was that discovery has been
conducted with respect to this area. In its response brief, PPG indicates that Plaintiffs conducted
limited discovery related to the Eljer Landfill Area, but no discovery on the area itself (ECF No.
250 at 6.) Plaintiffs argue that, since the Court’s decision was based upon a fact that PPG now
concedes was incorrect, reconsideration is appropriate. However, the Court understood the
parties’ positions, even without this factual clarification.
Plaintiffs cite Kephart v. ABB, Inc., 2014 WL 1452020 (W.D. Pa. Apr. 14, 2014), for the
following list of factors courts consider when deciding whether to allow a third-party complaint
to be filed:
(1) the timeliness of the motion; (2) whether joinder will introduce an unrelated
controversy; (3) the potential for complication of issues at trial; (4) whether the
third-party complaint would avoid multiple litigation and settle related matters in
one suit; (5) whether the evidence, witnesses, and legal issues will be substantially
the same in the defendant’s third-party action and plaintiff’s action; (6) the
likelihood and extent of delay in the trial; (7) the merit of the third-party
complaint (i.e. whether the joinder would foster an obviously unmeritorious
claim); and (8) the possible prejudice to the plaintiff.
Id. at *10. PPG notes that the Kephart court allowed a third-party complaint despite the passage
of two years since the complaint was filed and comments that this Court “correctly considered
that the timeliness of the motion is only one of eight factors in determining whether to allow a
third-party complaint to be filed.” (ECF No. 250 at 5.) However, as Plaintiffs observe, “none of
the other factors were identified by the Court as a basis for the November 19 Order.” (ECF No.
251 at 3.) Nevertheless, Plaintiffs do not discuss the other factors either. It does not appear from
the pleadings that the Third-Party Complaint would introduce an unrelated controversy or
complicate issues at trial, and on the other hand it could avoid multiple litigation over the Site
and settle related matters in one suit. Plaintiffs argue that there is no merit to the Third-Party
7

Complaint, but it cannot be said that the claims against Eljer are “obviously unmeritorious.”
Whether the evidence, witnesses, and legal issues will be substantially the same in PPG’s thirdparty action and Plaintiffs’ action is unknown. Adding Eljer introduces an unavoidable delay to
the case, but no trial date has been set and the extent of the delay is unknown.
In summary, most of the factors weigh in favor of allowing the impleader of Eljer.
Moreover, Plaintiffs have not demonstrated that the Court’s November 19, 2015 order committed
a “clear error of law or fact.” Therefore, Plaintiffs’ motion for reconsideration will be denied.
An appropriate order follows.

8

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

ORDER
AND NOW, this 25th day of February, 2016, for the reasons provided in the
Memorandum Opinion,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Reconsideration of the Court’s
November 19, 2015 Order (ECF No. 244) is denied.

s/Robert C. Mitchell_______________
ROBERT C. MITCHELL
United States Magistrate Judge

9