PENNENVIRONMENT et al v. PPG INDUSTRIES, INC et al

Filing 444

MEMORANDUM OPINION & ORDER denying 426 MOTION for Reconsideration re 420 Memorandum Opinion & Order filed by PPG INDUSTRIES, INC. Signed by Magistrate Judge Patricia L. Dodge on 10/2/2019. (mqe)

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.
)
)

I

Civil Action No. 12-342
Member Cases: 12-527, 13-1395,
13-1396, 14-229
Magistrate Judge Dodge

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)(l) (Clean Water Act or
CWA), section 7002(a)(l)(B) of the Resource Conservation and Recovery Act, 42 U.S.C.
§ 6972(a)(l)(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. (BPRR), 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 PPG's Motion for Reconsideration (ECF No. 426)
of the Court's May 22, 2019 Memorandum Opinion and Order (ECF No. 420), which denied

1

Plaintiffs have indicated that they are not pursuing claims against or seeking specific relief from
Ford City or BPRR, but have joined these defendants as indispensable parties.

PPG's Motion for a Determination that Injunctive Relief Under RCRA is Futile as a Matter of Law
(ECF No. 391) ("Motion for Determination"). For the reasons that follow, PPG's Motion for
Reconsideration will be denied.
In its Motion for Determination, PPG had argued that because it had worked with the
Pennsylvania Department of Environmental Protection ("P ADEP") under the Pennsylvania Land
Recycling and Environmental Remediation Standards Act (commonly known as "Act 2") and
developed a Comprehensive Site-Wide Remedy-which it is obligated to fulfill pursuant to a
Consent Order and Agreement ("COA'') signed by PPG and P ADEP on April 2, 2019-any further
injunctive relief that Plaintiffs could potentially seek with respect to their RCRA claim has been
rendered futile as a matter of law.
The Motion for Determination was fully briefed and a hearing was held on April 9 and 10,
2019. As noted, on May 22, 2019, a Memorandum Opinion and Order ("May Opinion") was issued
denying this motion without prejudice.
PPG filed the instant motion on June 19, 2019 (ECF No. 426). This matter has been fully
briefed, including the submission of an amicus brief by the Greater Pittsburgh Chamber of
Commerce, the Pennsylvania Chamber of Business and Industry and the Pennsylvania
Manufacturers Association.
I.

Standard of Review
A motion for reconsideration of an interlocutory order is governed by Federal Rule of Civil

Procedure 54(b). Cezair v. JP Morgan Chase Bank N.A., Civ. Action No. 13-2928, 2014 WL
4955535, at *1 (D. Md. Sept. 30, 2014) ("It is well-established that the appropriate Rule under

2

which to file motions for reconsideration of an interlocutory order is Rule 54(b)."). 2 As Judge
Conti recently observed:
Although "district courts have more discretion in reconsidering interlocutory orders
than in revising final judgments, ... the law of the case doctrine guides courts to
exercise their discretion with a light hand, even with respect to interlocutory orders,
and only to grant motions for reconsideration in 'extraordinary circumstances."'
Foster v. Westchester Fire Ins. Co., Civ. Action No. 09-1459, 2012 WL 2402895,
at *4 n.1 (W.D. Pa. June 26, 2012) (citing In re Anthanassious, 418 F. App'x 91,
95-96, 96 n. 5 (3d Cir. 2011), and quoting In re Pharmacy Benefit Managers
Antitrust Litig., 582 F.3d 432, 438-39 (3d Cir. 2009) ). Thus, while" '[a] court has
the power to revisit prior decisions of its own or of a coordinate court in any
circumstance, .. . as a rule courts should be loath[] to do so in the absence of
extraordinary circumstances such as where the initial decision was clearly
erroneous and would make a manifest injustice."' In re Pharmacy Benefit
Managers Antitrust Litig., 582 F.3d at 439 (3d Cir. 2009) (quoting Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811
(1988)).
Walney v. SWEPI LP, 2018 WL 4076919, at *2 (W.D. Pa. Aug. 27, 2018). A party seeking
reconsideration must show at least one of the following:

(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. Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669,
677 (3d Cir. 1999).
In moving for reconsideration, PPG does not argue that there has been an intervening
change in the law or that new evidence is available. Rather, it contends that the Court committed

2

Rule 54(b) states that "any order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties does not end the action
as to any of the claims or parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights and liabilities." Fed.R.Civ.P. 54(b).

3

a "clear error oflaw" that creates a "manifest injustice." 3
II.

The May 22, 2019 Opinion
In its May Opinion, the Court made several determinations that are relevant for purposes

of PPG;s Motion for Reconsideration. First, it concluded that while a mandatory injunction
requiring PPG to take action "necessary" under RCRA to prevent "imminent and substantial
endangerment to health or the environment," 42 U.S.C. § 6972(a)(l)(B), is an extraordinary
remedy that is only granted sparingly by the courts, Trinity Industries, Inc. v. Chicago Bridge &
Iron Co., 735 F.3d 131, 138-39 (3d Cir. 2013), PPG had the burden as the movant to demonstrate

that any injunctive relief that Plaintiffs might request has been rendered futile.
The Court also found that neither Plaintiffs nor PPG had accurately represented the
applicable legal standard.

Plaintiffs' position was that relief is warranted whenever a plaintiff

objects to a defendant's proposed remediation while PPG contended that relief cannot be granted
once a remediation is in place unless there is a "substantial breakdown" in the administrative
process. In contrast, the Court held that when a remedial scheme is in place and a plaintiff presents
expert evidence calling into question whether the remedial scheme is sufficient to address any
danger to health and the environment under RCRA, the court must evaluate this evidence and
decide the issue.
In the May Opinion, the Court also concluded that a remedy approved by PADEP is not

entitled to substantial deference in a RCRA case.

3

The May 22, 2019 Opinion was issued by Judge Mitchell prior to his retirement. This case was
reassigned to the undersigned on June 7, 2019.
4

Finally, because the parties presented equally credible expert testimony as to the
effectiveness and efficiency, or lack thereof, of the Comprehensive Site-Wide Remedy, the Court
found that PPG failed to demonstrate that all potential injunctive relief that could be sought by
Plaintiffs was rendered futile as a result of the PADEP-approved Comprehensive Site-Wide
Remedy.
In its Motion for Reconsideration, PPG makes three principal arguments. First, it contends
that the Court incorrectly interpreted the Third Circuit's decision in Trinity Industries, Inc. v.
Chicago Bridge & Iron Co., 735 F.3d 131, 138-39 (3d Cir. 2013). Specifically, PPG argues that

the Court erred by failing to preclude further injunctive relief when a remedial scheme was in place
and improperly focusing on individual components of the remediation as opposed to the
"remediation scheme as a whole." PPG next argues that the Court erred by failing to give proper
deference to PADEP, a state agency with expertise in environmental matters which is authorized
to implement RCRA in Pennsylvania. Finally, because the Court found that the experts presented
by PPG and Plaintiffs gave equally credible opinions, PPG contends that it would be impossible
for Plaintiffs to obtain a mandatory injunction given their "extraordinarily high" burden, nor could
Plaintiffs demonstrate that further injunctive relief under RCRA is "necessary." Each of these
arguments will be addressed below.
III.

Analysis
Impact of the Trinity Case
In Trinity Industries, Inc. v. Chicago Bridge & Iron Co., 735 F.3d 131, 138-39 (3d Cir.

2013), Trinity, the owner of an industrial site, brought suit against the former owner of the site
("CB&I"), seeking injunctive and monetary relief for the remediation that it was undertaking
pursuant to a court order. The district court granted CB&I's motion for summary judgment on the

5

RCRA claim and concluded that there was no "meaningful relief available under RCRA in light
I

of the Consent Order" that Trinity had entered into with PADEP to fund and conduct "response
actions" according to a schedule approved by PADEP. The Third Circuit Court of Appeals
affirmed the district court's decision because Trinity-which did not contend that the remediation
scheme put in place by the Consent Order was deficient or ineffective-failed to demonstrate that
future participation by CB&I in the remediation effort would aid in the minimization threats to
human health or the environment. "That is, Trinity has not shown that CB&I' s participation is
'necessary' as RCRA § 7002(a)(l)(B) requires, now that the conditions of the Consent Order are
in place and appear to be effective." 735 F.3d at 140.
In rendering its decision, the Court of Appeals distinguished a prior case in which it
affirmed a grant of injunctive relief under RCRA when there was "a substantial breakdown in the
agency process," such that there was "strong doubt as to whether there is a [state-ordered] process
to override" Interfaith Cmty. Org. v. Honeywell Int 'l Inc., 399 F.3d 248, 265, 267 (3d Cir. 2005)
("!CO/Honeywell"). See Trinity, 735 F.3d at 140.

PPG contends that Trinity holds that unless there is a substantial breakdown in the agency
process as was the case in !CO/Honeywell, a court should defer to the remedial scheme approved
by the state agency. In the May Opinion, after a thorough briefing and analysis by the parties, the
Court rejected this as an unreasonable reading of Trinity, and PPG has offered no new basis to
challenge this conclusion. As the Third Circuit Court of Appeals has held, "citizens need not
~xhaust or rely upon other resources or remedies before seeking relief under these amendments ....
Courts should consider the availability of other alternatives ... but there is no requirement to defer

6

to them." !CO/Honeywell, 399 F.3d at 267. 4
PPG also argues, as it did previously, that the issue under consideration is "the
administrative process as a whole" rather than the specifics of the Comprehensive Site-Wide
Remedy. In the May Opinion, the Court rejected this argument, noting that Trinity "stated that the
conditions of the Consent Order appeared be effective, not the remedial scheme. In addition, PPG
has not explained how a determination can be made that a remedial scheme is effective." (ECF
No. 420 at 20 n.12.) As Plaintiffs note, PPG offers no support for its position, which presumably
would preclude further injunctive relief in any case in which PADEP was engaged in some kind
of "administrative process." In short, this is simply another way of characterizing PPG's position
that injunctive relief is only permitted when there is a "substantial breakdown" in the agency
process. For all of the reasons cited above, this argument is unavailing.
Neither Trinity nor !CO/Honeywell address a situation in which a state agency has
approved a remedial scheme but the plaintiff presented evidence that this remediation was
:

ineffective under RCRA. The May Opinion noted that in two recent cases, the Court of Appeals
for the Seventh Circuit, citing Trinity, addressed the issue of whether the plaintiffs met their burden
of demonstrating that they were entitled to a mandatory injunction when a state agency-approved
remediation was underway. 5 In LAJIM, LLC v. General Electric Co., 917 F .3 d 93 3 (7th Cir. 2019),

4

PPG quotes the district court's holding in Trinity that "it would be impossible to deem a
mandatory injunction 'necessary' for§ 7002(a)(l)(B) purposes in a case like this one, in which a
remedial scheme is already underway." 735 F.3d at 140. But the holding of the Court of Appeals
was more nuanced than that. The court cited the fact that Trinity had not challenged the
remediation scheme and had not shown that CB&I's participation was "necessary."
5
Although decisions from the Seventh Circuit are not binding on this Court, the cases cited by the
Court in the May Opinion represent well-reasoned decisions that are instructive. Indeed, the parties
discussed the LAJIM case at length in their briefs regarding PPG's futility motion and PPG has not
suggested that the Third Circuit would have decided the case differently.
7

petition/or cert. docketed, (U.S. June 21, 2019) (No. 18-1564), plaintiffs sought a mandatory
injunction to order General Electric to investigate and remediate groundwater contamination
emanating from its plant even though General Electric had entered into a consent order with the
state agency (IEP A). The court noted that "the denial of injunctive relief after a district court has
found a risk of imminent and substantial danger to public health or to the environment should be
rare. Here, however, plaintiffs failed to provide the district court with any evidence that injunctive
relief, in addition to what the IEP A had already ordered in the state action, would improve the
environment and not cause additional harm." Id. at 942. At a hearing, General Electric's expert
provided "reasonable, rational and credible bases explaining why certain actions were taken and
others were not," but the plaintiffs' expert merely testified that more investigation and testing was
required and declined to make a recommendation regarding what additional specific cleanup was
recommended. The plaintiffs never conducted their own investigation to contradict GE's test
results and therefore did not provide evidence that would be sufficient for the court to order relief
in addition to what the IEP A already required. The Court of Appeals commended the district court
for "walking a fine line between supplementing and supplanting the Consent Order." Id. at 948. It
concluded that RCRA "does not require a court-ordered cleanup where the court has not found
such action necessary to prevent harm to the public or the environment, especially where, as here,
an expert the court found credible testified that additional cleanup would cause further harm. Id.
at 949. 6 See also Liebhartv. SPX Corp., 917 F.3d 952, 963-64 (7th Cir. 2019).

6

PPG does not address LAJIM or the Court's discussion of it.
8

In the May Opinion, the Court concluded that, unlike the hearings in LAJJM and Liebhart,
the hearing in this case elicited dueling narratives from equally credible experts as to whether
PPG's remedy would fulfill RCRA's requirement of doing all that is "necessary" to prevent a risk
of imminent and substantial endangerment to human health or the environment at the Site.
Plaintiffs' experts provided testimony regarding how PPG's remedy and PADEP's proceedings do
not adequately protect the public and the environment and described the nature of the relief the
Court should order. Specifically, Plaintiffs offered expert opinions that PPG did not fully delineate
the waste at the Site; that its proposed remedies for the Slurry Lagoon Area (SLA) and the Solid
Waste Disposal Area (SWDA) are ineffective and inefficient for multiple reasons; that viable
alternatives (such as a cap and upgradient groundwater diversion system) would address these
problems that PPG's proposals do not address; and that PPG's approach would require continued
maintenance of the remedy for centuries even though the COA will terminate six months after the
remedy is implemented.
PPG also presented credible expert testimony on these questions, but the parties' competing
credible expert opinions will have to be evaluated at trial.
Deference to PADEP's Determinations
PPG next argues that the Court failed to give appropriate deference to PADEP's approval
of the Comprehensive Site-Wide Remedy. PPG argues that PADEP is the state agency with
knowledge of environmental rules and that: "If Plaintiffs' goal is ultimate and complete
remediation of site, this goal would be achieved faster and more efficiently through the efforts of
the [agency] without interference from the Court." See Friends of Santa Fe County v. LAC

Minerals, Inc., 892 F. Supp. 1333, 1350 (D.N.M. 1995). See also Read v. Corning, Inc., 351 F.
Supp. 3d 342, 350 (W.D.N.Y. 2018); Clean Harbors, Inc. v. CBS Corp., 875 F. Supp. 2d 1311,
9

1320 (D. Kan. 2012); McCormick v. Halliburton Co., 2012 WL 1119493, at *2-3 (W.D. Okla.
Apr. 3, 2012). In a footnote, PPG acknowledges that these cases concerned the doctrine of primary
jurisdiction,7 but argues that "the pronouncements regarding deference to agency expertise and
actions are equally applicable here." (ECF No. 427 at 11 n.4.)
In the May Opinion, the Court rejected PPG's attempt to rely upon primary jurisdiction
decisions because they are inapplicable in this action. (ECF No. 420 at 22 n.14.) Notably, in the
Court's first opinion in this case (issued on August 8, 2013), it rejected PPG's attempt to rely upon
these and similar cases as inconsistent with the holding of the Court of Appeals in Raritan

Baykeeper v. NL Industries, Inc., 660 F.3d 686, 692 (3d Cir. 2011), and held that primary
jurisdiction does not apply in this case. (ECF No. 66 at 31-32.) See also Interfaith Cmty. Org. v.

PPG Indus., Inc., 702 F. Supp. 2d 295, 311 (D.N.J. 2010) ("!CO/PPG") (RCRA citizen suit in
which the court held "Congress clearly contemplated that the environmental issues posed here are
within the competency of the courts when it created a citizen suit provision"). As the !CO/PPG
court in noted in response to PPG's argument that the plaintiff was collaterally attacking PADEP's
actions, "this [is] the very nature of an imminent and substantial endangerment citizen suit: it
allows citizens to seek judicial remedies where, allegedly, an agency has failed to protect people
or the environment from danger. To abstain on the basis of collateral attack here would defeat
Plaintiffs' statutory right to a citizen suit." Id at 314. See also Adkins v. VIM Recycling, Inc., 644
F.3d 483, 499 (7th Cir. 2011) ("Congress enacted the citizen-suit provisions of RCRA and other
environmental laws because the world is not ideal, because government agencies face many

7

Primary jurisdiction is a doctrine which enables courts to abstain from hearing a case and refer
the matter to an administrative agency with "special competence" to address the matter. Reiter v.
Cooper, 507 U.S. 258, 268-69 (1993).
10

demands on their _resources, because administrations and policy priorities change, and because
regulatory agencies are subject to the phenomenon knowns as 'agency capture."') 8 PPG has
provided no basis for disturbing this law of the case.
In its 2013 Memorandum Opinion, the Court concluded only that based upon the evidence
presented, P ADEP administers the NPDES permit application program in Pennsylvania. The court
did not find that RCRA charges PADEP with enforcing environmental laws. (ECF No. 66 at 28,
33.) In the May Opinion, the Court observed that while PPG has continued to argue that authority
has been delegated to PADEP to oversee RCRA compliance in Pennsylvania, the evidence
presented contradicts this contention. (ECF No. 420 at 25.) 9 As this Court has already stated: "If
the Court of Appeals wanted to conclude that courts should give substantial deference to state
agency-approved remediations, it could easily have said so, but it did not." (ECF No. 420 at 2526.) See also !CO/PPG, 702 F. Supp. 2d at 311 ("The questions before this Court arise under the
language of the RCRA, a statute which the DEP has no discretion to interpret."); id. at 312 ("The
DEP;s general discretion with regard to environmental matters in this state does not circumscribe
citizen suits authorized by Congress.")
In ICO/PPG, PPG made the same arguments it makes here, but the court rejected them.
The !CO/PPG court noted that "the Consent Judgment requires that PPG remediate chromium

8

Agency capture refers to "an agency's susceptibility to the influence and control of the industry
Congress charged the industry to regulate." Bonneville Int'! Corp. v. Peters, 153 F. Supp. 2d 763,
774 n.11 (E.D. Pa. 2001).
9
PPG now argues that the fact that the EPA implements the RCRA Corrective Action program in
Pennsylvania has no bearing on the issue before the Court because PPG ceased disposing of waste
at the Site in 1970 and the trigger date for RCRA Corrective Actions is November 19, 1980. (ECF
No. 427 at 13-14.) This case is not a RCRA Corrective Action, and the issue is whether PADEP's
approval of a remedy effectively bars a citizen suit such as this one. PPG has cited no authority to
support its contention that it does.
11

levels to DEP's current standard of 20 ppm, but this Court could potentially, for instance, order
remediation to a standard lower than 20 ppm." Id at 301. The court concluded that:
Here, PPG has not agreed to provide all the remedies which Plaintiffs seek.
Furthermore, in contrast with permitting cases, PPG's liability cannot be
established simply by establishing "compliance" or "non-compliance" with
preexisting state standards and regulations. Rather, the extent of Defendant's
liability, if any, must be determined by a court. Therefore, PPG ... may be liable
under the RCRA even if it complies with the state standards incorporated in the
Consent Judgment. See Honeywell, 399 F.3d at 259-60 (holding a court may grant
relief "as necessary" to abate endangerment, regardless of state standards).
Id. at 302· 10

In its reply brief, PPG cites Kara Holding Corp. v. Getty Petroleum Mktg., Inc., 2004 WL
1811427, at *12 (S.D.N.Y. Aug. 12, 2004) to support its contention that PADEP's approval of the
remedy should be given "substantial weight" because determining that an imminent and substantial
endangerment is being sufficiently remedied is intertwined with the agency's determination of
acceptable levels of contaminants at a site. In that case, the plaintiff proposed a remediation plan,
but its experts acknowledged at a hearing on motions for summary judgment that there were
various acceptable ways of handling the remediation and there was no evidence that the plan
approved by the state agency was insufficient to address any danger to health or the environment.
In this case, by contrast, Plaintiffs' experts have raised serious challenges to the approved-but

not yet implemented-remedy as being sufficient to address any danger to health and the
environment. See also Stoll v. Kraft Foods Global, Inc., 2010 WL 3702359, at *10 (S.D. Ind. Sept.
6, 2010) (distinguishing Kara on the grounds that it involved a nearly completed remediation
project, as opposed to a project that had not yet been finally approved and the plaintiffs had not

10

As Plaintiffs note, in !CO/PPG, the district court denied PPG's motion for reconsideration. Id.
at 316.
12

yet been afforded the opportunity to present a proposed remediation plan).
PPG cites to cases holding that Pennsylvania courts afford deference to the expertise of
agencies such as the PADEP. Mathies Coal Co. v. Commonwealth, 559 A.2d 506,512 (Pa. 1989);

Wheeling-Pittsburgh Steel Corp. v. Department of Envt'l Protection, 979 A.2d 931, 937 (Pa.
Commw. 2009). It then argues that "[f]ederal courts reviewing state agency action afford the
agencies the deference they would receive under state law." Township of Bordentown v. FERC,
903 F.3d 234,270 (3d Cir. 2018). 11 See also Don't Ruin Our Park v. Stone, 802 F. Supp. 1239,
1249 (M.D. Pa. 1992). PPG also cites a case decided under the Administrative Procedures Act for
the proposition that "an agency is entitled to select any reasonable methodology and to resolve
conflicts in expert opinion and studies in its best reasoned judgment based on the evidence before
it." Buckingham Township v. Wykle, 157 F. Supp. 2d 457,467 n.10 (E.D. Pa. 2001).
By contrast, however, the issue here is not whether PADEP's actions comport with
Pennsylvania law, but rather, whether PPG's actions have created an imminent and substantial
endangerment to health or the environment.
Finally, PPG makes the public policy argument that failing to afford deference to P ADEP's
\

determinations will substitute the opinions of Plaintiffs' paid experts for the final determination of
the P ADEP and supplant the agency's fundamental role, mission and expertise in determining what
is necessary to protect human health and the environment in Pennsylvania. PPG further contends
that this will place PPG and PADEP in the untenable position of being subject to inconsistent and
competing requirements with respect to remediation of the Site and undermine the Act 2 program

11

As Plaintiffs note, the court subsequently stated that "we afford no deference to a state agency's
interpretation of federal law, which we instead review de nova." Id.
13

and its established cleanup standards.
The Court finds PPG's policy arguments unavailing. PPG made many of the same policy
arguments in the !CO/PPG case, and the court rejected them, stating that "Congress took no steps
to bar a RCRA citizen suit for any other reason than that referred to [in the statute]." 702 F. Supp.
2d at 315. "Although the subject matter of the Consent Judgment and remediation standards chosen
by the DEP are, indirectly, at issue here, there is no legitimate basis for abstention [because] the
RCRA suit may exist in spite of other actions having been taken to resolve the same matter." Id.
Although PPG's argument in this case is in support of deference rather than abstention, the result
is the same. RCRA includes a citizen-suit provision with certain exceptions, none of which apply
here, and the fact that this Court might impose a more stringent remediation standard than that to
which PADEP has agreed does not require the Court to abdicate its responsibility to apply the law
to the facts of this case.
Equally Credible Experts
PPG's final argument is that, because the Court noted that the experts presented by
Plaintiffs and PPG at the hearing were "equally credible," it must necessarily follow that Plaintiffs
could never succeed in obtaining mandatory injunctive relief, which requires "an extraordinarily
high burden." Plaintiffs state that it is not unusual for a court to find that the experts of both sides
are credible, yet still determine that one party has presented more compelling and persuasive case
on the merits. See Interfaith Cmty. Org. v. Honeywell Int'!, Inc., 263 F. Supp. 2d 796, 805-13
(D .NJ. 2003) (court found both sets of experts credible but still granted judgment and injunctive
relief to the plaintiff), ajf'd, 399 F.3d 248 (3d Cir. 2005). Plaintiffs also note that they did not
present all of their arguments or evidence or even all of their experts at the hearing because they
were not required to demonstrate all the flaws in the testimony of PPG's experts.
14

In noting that the parties submitted "equally credtble experts," the Court did not make an
ultimate determination as to the merits of Plaintiffs' claim or PPG's defense regarding potential
injunctive relief. Rather, the Court observed that although· PPG presented credible experts who
testified that the Comprehensive Site-Wide Remedy was sufficient to prevent further imminent
and substantial endangerment to health or the environment, Plaintiffs also presented experts whose
testimony-if believed by the trier of fact in a trial on the merits of the case-could support the
position that the Comprehensive Remedy was ineffective and inefficient. A full adjudication of
the parties' respective positions on this issue will not occur until trial. At the hearing, however,
PPG failed to meet its burden to demonstrate that any further injunctive relief Plaintiffs might
request is futile.
Therefore, for all of the reasons identified above, PPG's motion for reconsideration will be
denied.
An appropriate order follows.

15

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
Magistrate Judge Dodge

ORDER
AND NOW, this 2nd day of October, 2019, for the reasons set forth in the Memorandum
Opinion, IT IS HEREBY ORDERED that Defendant PPG Industries, Inc.'s Motion for
Reconsideration of the Court's May 22, 2019 Memorandum Opinion and Order (ECF No. 426) is
denied.
BY THE COURT:

16