PENNENVIRONMENT et al v. PPG INDUSTRIES, INC et al
Filing
66
MEMORANDUM AND OPINION and ORDER denying 29 Motion to Dismiss 1 Complaint, filed by BOROUGH OF FORD CITY, denying 24 Motion to Dismiss 1 Complaint, filed by PPG INDUSTRIES, INC. Signed by Magistrate Judge Robert C. Mitchell on 8/8/2013. (spc)
PENNENVIRONMENT et al v. PPG INDUSTRIES, INC et al
Doc. 66
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PENNENVIRONMENT and SIERRA CLUB,
Plaintiffs,
vs.
PPG INDUSTRIES, INC. and BOROUGH OF
FORD CITY,
Defendants.
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Civil Action No. 12-342
MEMORANDUM OPINION AND ORDER
Plaintiffs, PennEnvironment and Sierra Club, bring this citizens suit pursuant to 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) and the Borough of Ford City (Ford
City), 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 are two motions to dismiss, one filed by PPG and the
other by Ford City. For the reasons that follow, the motions will be denied.
Facts
Plaintiffs’ complaints allege that from 1899 to 1972, PPG owned land in Cadogan and
North Buffalo Townships that was used by PPG to dispose of waste from its glass manufacturing
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plant in Ford City. (CWA Compl. ¶ 14; RCRA Compl. ¶ 16.)1 From 1950 to 1970, PPG
disposed of waste slurry in areas of that land that had formerly been used as a sandstone quarry.
PPG created three slurry lagoons within the quarry, which occupy an area of approximately
77 acres. (CWA Compl. ¶¶ 14-15; RCRA Compl. ¶¶ 16-17.) Those slurry lagoons are bordered
by the Allegheny River to the south, Route 128 to the north, Glade Run (a tributary to the
Allegheny River) to the west, and a feature that PPG terms the “Drainage Ditch” to the east. A
solid waste disposal area used by PPG from the 1920s to the 1970s, a plumbing fixture landfill
used and occupied by Eljer, Inc., and four baseball fields are east of the Drainage Ditch. (CWA
Compl. ¶ 16; RCRA Compl. ¶ 18.) Plaintiffs have alleged that the slurry lagoons, solid waste
disposal area, plumbing fixture landfill and baseball fields, together measuring approximately
150 acres, constitute what they call the “PPG Waste Site.” (CWA Compl. ¶ 17; RCRA Compl.
¶ 19.) PPG calls it the “Ford City Site” and contends that it does not include the plumbing
fixture landfill or the ballfields. The Court will refer to it as “the Site.” The issue of whether the
plumbing fixture landfill and the ballfields are included is discussed below.
On March 8, 1971, PPG and the Pennsylvania Department of Environmental Resources -now known as the Pennsylvania Department of Environmental Protection (“PADEP”) -- entered
into an Agreement and Stipulation concerning discharges of industrial waste from the Site into
the Allegheny River. (CWA Compl. ¶ 18; RCRA Compl. ¶ 20; PPG Ex. 7.) The Agreement and
Stipulation required PPG to submit a remediation plan that would either eliminate the continuing
discharges or treat the discharges in perpetuity. (CWA Compl. ¶ 19; RCRA Compl. ¶ 21.)
Plaintiffs note that it has now been more than 40 years since PPG signed the Agreement and
Stipulation agreeing to stop or treat the discharges.
1
Civ. A. No. 12-342, ECF No. 1; Civ. A. No. 12-527 ECF No. 1. All citations herein, other than
to the RCRA Complaint, refer to Civ. A. No. 12-342.
2
On August 1, 1972, PPG submitted a remediation plan that proposed continuing untreated
discharge into the Allegheny River. (CWA Compl. ¶ 20; RCRA Compl. ¶ 22.) On October 16,
1972, PPG sold the Site to Ford City for one dollar. (CWA Compl. ¶ 21; RCRA Compl. ¶ 23;
PPG Ex. 5.) On or about March 16, 1973, PADEP informed PPG that its plan was unacceptable
and requested that PPG revise the plan to provide for treatment of the discharge. On or about
May 16, 1973, PPG withdrew its plan. (CWA Compl. ¶ 22; RCRA Compl. ¶ 24; PPG Ex. 8.)
Plaintiffs allege that, since at least April 16, 1973, PPG has been required to obtain a
National Pollutant Discharge Elimination System (“NPDES”) permit for the Site and has failed
to do so. (CWA Compl. ¶ 23.) PADEP informed PPG at least as early as February 21, 1992,
that PPG was required to obtain a permit under the CSL, but PPG has failed to do so. (CWA
Compl. ¶ 24; PPG Ex. 11.) PPG notes that, in response to the notice, it prepared a Remedial
Investigation Work Plan which the Department approved in November 1992. (PPG Ex. 14.)
PPG indicates that, based on the previous studies and work that had been done on the Site
to mitigate risk to human health and the environment, it entered the Site into Pennsylvania’s
Land Recycling Program (commonly known as “Act 2”) in 2001. Pennsylvania’s Act 2 program
allows owners and operators to “voluntarily” (i.e., without the issuance of a PADEP Order)
remediate properties under the supervision of PADEP. The study and remediation of a property
under Act 2 can take place either before or after an owner/operator has formally submitted the
property to the Act 2 process. Nonetheless, PADEP must approve all work plans and
remediation plans and has the ability to require changes and revisions in order to assure
compliance with Act 2 remediation standards. PPG submitted the Site to the Act 2 process by
filing a Notice of Intent to Remediate (“NIR”) in 2001, pursuant to which PPG committed to
ensure that the Site, including the leachate from the slurry lagoon area at issue in Plaintiffs’
3
Complaints, met the Act 2 statutory site-specific remediation standards. (PPG Exs. 17, 18.) As
part of the Act 2 process, PPG submitted a Remedial Investigation Report for the slurry lagoon
area on July 31, 2001 and an Addendum on October 15, 2001. (PPG Exs. 19, 20.) PADEP
approved these reports on October 19, 2001. (PPG Ex. 21.)
PPG states that, in order to construct the selected remedy, in 2001, it developed and
submitted to PADEP an NPDES Permit Application for Discharges Associated with
Construction Activities that contained an Erosion and Sedimentation (E&S) Control Plan to
address the leachate seeps during the construction phase. (PPG Ex. 22.) However, PADEP did
not approve this E&S Plan, but instead issued PPG an interim discharge permit on November 19,
2002 that required the collection and treatment of seeps resulting from the leachate from the
slurry lagoon area during construction. (PPG Ex. 23.)
On March 9, 2009, PADEP issued an Administrative Order (“2009 Administrative
Order”), in which it 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.” (CWA Compl. ¶ 26; RCRA Compl. ¶ 27; PPG Ex. 1 at PADEP 1.)
The site referred to in the 2009 Administrative Order includes at least the slurry lagoons and
solid waste disposal area. The 2009 Administrative Order states that “[p]recipitation which
infiltrates the Slurry Lagoons and the Landfill at the Site becomes contaminated with hazardous
substances.” (CWA Compl. ¶ 27; RCRA Compl. ¶ 28; PPG Ex. 2 ¶ 14.) In addition, the 2009
Administrative Order states that “[e]nvironmental assessments have found that the Slurry
Lagoons at the Site are contaminated with various hazardous substances [including] antimony,
arsenic, and lead.” (PPG Ex. 2 ¶ 13.)
The Order stated that discharges seep out “at various locations at the Site and then flow
4
or are conveyed into the waters of the Commonwealth,” including the Allegheny River and
Glade Run. Leachate discharged into Glade Run, in turn, is discharged into the Allegheny River.
Leachate seeps through fissures on the cliff face of the south side of the Site and is discharged to
the Allegheny River through culverts under the railroad tracks that are at the base of the cliff.
Leachate also enters the Allegheny River through “Outfall 001,” which was constructed by PPG.
(CWA Compl. ¶ 28; RCRA Compl. ¶ 29; PPG Ex. 2 ¶ 15.) The Order also stated that the
discharges, “which are pollutional and have a very high pH and contain metals and other toxic
chemicals, continue unabated as of the date of this Administrative Order.” (CWA Compl. ¶ 30;
RCRA Compl. ¶ 31; PPG Ex. 2 ¶ 12.)
The Order required PPG to conduct “interim monitoring and reporting of the quality and
quantity” of certain seeps, to “sample the receiving streams above and below the points of
discharge,” and to monitor weekly both the seeps and streams for certain parameters. (PPG Ex.
2 at 4-5 ¶ A.) The Order required PPG to submit an interim abatement plan within 30 days and
to submit a treatment plan within 90 days. (PPG Ex. 2 at 5 ¶¶ C, D.) Subparagraph (ii) of
paragraph D required PPG to identify in its Treatment Plan, inter alia, “the necessary NPDES
permit(s) for the authorization of the discharges associated with the collection and treatment
system” and to “provide a schedule for applying for the necessary permits.” (CWA Compl.
¶¶ 31-33.)
On July 2, 2009, PADEP approved PPG’s May 26, 2009 Addendum to Interim
Abatement Plan (the “July 2 Addendum”), such that PPG was directed to:
collect wastewater from the Site and treat that wastewater in a treatment system
that will be designed to address any accumulated sludge that may result from
treatment and neutralization. PPG shall install, operate, and maintain the
collection and treatment system in accordance with the requirements of
Attachment A. In addition, PPG shall design the collection system using pipes,
therefore, avoiding the collection and treatment of uncontaminated storm water
5
runoff. Finally, PPG shall submit a final design before construction commences.
This will allow the Department to review the final plan.
(CWA Compl. ¶ 34; Pls.’ Br. (ECF No. 43) Ex. 1.) Attachment A to the July 2 Addendum
required that “PPG shall monitor the discharges from any temporary system” and comply with
certain effluent limitations in accordance with the table listed therein. (ECF No. 43 Ex. 1 Attach.
A.) Plaintiffs allege that, based on the monthly Effluent Monitoring Data reports submitted by
PPG to PADEP for the period February 2010 through December 2011, they have identified 162
discharge violations and 33 reporting violations. (CWA Compl. ¶ 31 & Exs. 2, 3.)
Paragraph 3 of Attachment A of the July 2 Addendum states that “[n]o untreated or
ineffectively treated wastewaters shall be discharged into the waters of the Commonwealth….”
Under the CSL, “waters of the Commonwealth” includes “any and all rivers, streams, creeks,
rivulets, impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds,
springs and all other bodies or channels of conveyance of surface and underground water, or
parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth.”
35 P.S. § 691.1. (CWA Compl. ¶ 34.)
In addition, Plaintiffs allege that the discharge from Outfall 001 is being treated only for
pH and not any other pollutant. Thus, they allege that PPG is discharging untreated or
ineffectively treated wastewaters into the Allegheny River. (CWA Compl. ¶ 35.)
In June 2009, PPG submitted a Treatment Plan (PPG Ex. 28), which PADEP approved on
November 9, 2011. (CWA Compl. ¶ 36; PPG Ex. 30). PPG notes that the Treatment Plan
provided for the submission to PADEP of a Treatment Plan Report evaluating potential remedial
strategies for the collection and treatment of seeps discharging from the Site and implementation
of the selected remedy, once approved, on a schedule. PPG submitted this report in December
2012. (PPG Ex. 31.) PPG states that the report “is currently under review by PADEP.” (PPG
6
Br. (ECF No. 25) at 11.)
Plaintiffs allege that PPG’s Treatment Plan 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.
(CWA Compl. ¶ 33.)
Procedural History
On January 13, 2012, Plaintiffs gave notice of their intent to file suit to the Administrator
of the United States Environmental Protection Agency (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 Defendants 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
7
permit issued by PADEP authorizing such discharges. Count V alleges that PPG has violated the
CWA in that the Treatment Plan it submitted in June 2009 fails to provide a schedule for the
application for NPDES permits and, based on the monthly progress reports submitted by PPG
beginning on April 1, 2009, through at least January 5, 2012, PPG took no steps to apply for such
permits and Plaintiffs allege, on 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 Defendants 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.2 This case was docketed at Civ. A. No. 12-527. On May 25, 2012,
2
Both complaints state that Plaintiffs are not pursuing a claim or specific relief against Ford
City, but that it is joined as an indispensable party under Rule 19(a). (CWA Compl. ¶ 13 & at
23-24; RCRA Compl. ¶ 15 and at 11.)
8
Plaintiffs filed a motion to consolidate the two cases (ECF No. 11). On May 29, 2012, an order
was entered granting this motion and consolidating the cases at No. 12-342 (ECF No. 12).
On February 28, 2013, PPG filed a motion to dismiss the complaints (ECF No. 24),
accompanied by a brief and several volumes of exhibits (ECF Nos. 25-28). Ford City then filed
a motion to dismiss which incorporated the arguments made by PPG in its motion and also
argued that the RCRA Complaint contained no allegations that it had any involvement with the
waste at issue (ECF No. 29).
On March 20, 2013, Plaintiffs moved for an extension of time in which to reply (ECF No.
33), contending that PPG’s motion, the first and lengthiest argument of which concerned the
doctrine of primary jurisdiction, was either: 1) a motion for summary judgment for which they
needed to take discovery in order to properly respond; or 2) a motion under Rule 12(b)(1) for
which they would need to conduct discovery to respond to factual challenges to the Court’s
subject matter jurisdiction; in the alternative they argued that PPG should be directed to re-file its
motion under Rule 12(b)(6) without submitting matters and arguments outside the pleadings.
PPG filed a response to this motion on April 2, 2013 (ECF No. 37) and Plaintiffs filed a reply
brief on April 9, 2013 (ECF No. 38).
On April 10, 2013, the Court entered an order stating that:
IT IS HEREBY ORDERED that the motions to dismiss will not be treated as
motions for summary judgment or motions challenging the Court’s subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), but will be treated as
motions pursuant to Federal Rule of Civil Procedure 12(b)(6) and Plaintiffs do not
need to conduct discovery in order to respond to the substance of the motions
under the appropriate standard of review;
IT IS FURTHER ORDERED that some of materials submitted by PPG will be
considered because they are public records which indicate that the PADEP has
been involved in the development and implementation of procedures for the
remediation of the Ford City Site at issue in this case, but the substance of the
documents will not be considered to establish the details of the remediation or the
9
extent to which it has progressed or succeeded, and other materials which are not
public records will not be considered at all.
(ECF No. 39.) On April 24, 2013, Plaintiffs filed their response to the motion to dismiss (ECF
No. 43) and on May 14, 2013, PPG filed a reply brief (ECF No. 45).
Standard of Review
The Supreme Court has issued two decisions that pertain to the standard of review for a
motion to dismiss for failure to state a claim upon which relief could be granted under Federal
Rule of Civil Procedure 12(b)(6). The Court held that a complaint must include factual
allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some
factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she
provide not only ‘fair notice’ but also the ‘grounds’ on which the claim rests.” Phillips v.
County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has
met this standard, a court must reject legal conclusions unsupported by factual allegations,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements;” “labels and conclusions;” and “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of misconduct are
insufficient. Id. at 679. District courts are required to engage in a two part inquiry:
First, the factual and legal elements of a claim should be separated. The District
Court must accept all of the complaint’s well-pleaded facts as true, but may
disregard any legal conclusions…. Second, a District Court must then determine
whether the facts alleged in the complaint are sufficient to show the plaintiff has a
“plausible claim for relief.” … In other words, a complaint must do more than
allege the plaintiff’s entitlement to relief. A complaint has to “show” such an
entitlement with its facts.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citations omitted).
“Although a district court may not consider matters extraneous to the pleadings, ‘a
10
document integral to or explicitly relied upon in the complaint may be considered without
converting the motion to dismiss into one for summary judgment.’” U.S. Express Lines, Ltd. v.
Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (quoting In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997)). In addition, “[c]ourts ruling on Rule 12(b)(6) motions may
take judicial notice of public records.” Anspach ex rel. Anspach v. City of Phila., 503 F.3d 256,
273 n.11 (3d Cir. 2007). Plaintiffs have agreed that the following PPG exhibits are either
integral to their allegations or are public records: Exs. 1, 2, 5, 7, 8, 11, 14, 21, 23, 27, 28, 29
(progress reports through January 2012), 30 and 32. (ECF No. 43 at 3 n.4.)
Pursuant to the case law, Plaintiffs’ agreement and this Court’s order of April 10, 2013,
the Court will take judicial notice of those documents submitted by PPG that are integral to
Plaintiffs’ claims or that constitute public records which indicate that PADEP has been involved
in the development and implementation of procedures for the remediation of the Site at issue in
this case, but the substance of the documents will not be considered to establish the details of the
remediation or the extent to which it has progressed or succeeded, and other materials which are
not integral to their claims and are not public records will not be considered at all. Individual
discussion of these documents will occur as needed below.
However, it is noted that PPG’s final ground for dismissal concerns the issue of standing.
“A motion to dismiss for want to standing is … properly brought pursuant to Rule 12(b)(1),
because standing is a jurisdictional matter.” Ballentine v. United States, 486 F.3d 806, 810 (3d
Cir. 2007) (citations omitted).3 The first issue a court must decide in reviewing a Rule 12(b)(1)
3
This Court’s order of April 10, 2013 erroneously stated that the motions to dismiss did not raise
subject matter jurisdiction arguments because Plaintiffs did not refer to the standing argument in
their motion for extension of time, nor did PPG address this issue in its response and Plaintiffs
did not mention it in their reply brief. Nevertheless, as explained in the text, it is not necessary to
refer to documents outside the pleadings to resolve the issue of standing in this case.
11
motion is whether the challenge to the court’s subject matter jurisdiction is a facial or factual
attack. “In reviewing a facial attack, the court must only consider the allegations of the
complaint and documents attached thereto, in the light most favorable to the plaintiff. In
reviewing a factual attack, the court may consider evidence outside the pleadings.” Gould Elec.,
Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (footnote and citations omitted). “Facial
attacks ... contest the sufficiency of the pleadings, and the trial court must accept the complaint’s
allegations as true.” Turicentro, S.A. v. American Airlines, Inc., 303 F.3d 293, 300 n.4 (3d Cir.
2002) (citation omitted).
Plaintiffs assert that PPG only challenges the legal sufficiency of the complaints and thus
its attack is a facial one for which the Court must consider the allegations of the complaint as
true. PPG contends that “resolution of the matter turns on the factual determination of whether
PADEP has primary jurisdiction over the issues alleged by Plaintiffs with respect to [the Site].”
(ECF No. 25 at 13-14.) PPG has muddied the waters by confusing standing with primary
jurisdiction (which, as explained below, is not a jurisdictional issue). PPG’s attack on Plaintiffs’
standing to maintain this suit is a facial one which does not require reference to materials outside
the complaint.
The Court of Appeals has explained that:
In evaluating whether a complaint adequately pleads the elements of
standing, courts apply the standard of reviewing a complaint pursuant to a Rule
12(b)(6) motion to dismiss for failure to state a claim: “Court[s] must accept as
true all material allegations set forth in the complaint, and must construe those
facts in favor of the nonmoving party.” Ballentine, 486 F.3d at 810 (citing Warth
v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)); see also
Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73 (3d Cir. 2011) (“A
dismissal for lack of statutory standing is effectively the same as a dismissal for
failure to state a claim.”). The Supreme Court most recently explained this
standard in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009): “[A] complaint must contain sufficient factual matter,
12
accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal,
129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)….
While the plausibility standard does not impose a “probability
requirement,” it does demand “more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127
S.Ct. 1955). Pursuant to Iqbal’s clarification of the plausibility determination as a
“context-specific task that requires the reviewing court to draw on its judicial
experience and common sense,” id., this Court has found that “[s]ome claims
require more factual explication than others to state a plausible claim for relief.”
West Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir.2010).
We have reasoned that, “[f]or example, it generally takes fewer factual allegations
to state a claim for simple battery than to state a claim for antitrust conspiracy.”
Id.
“A complaint has to ‘show’ such an entitlement with its facts.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). With respect to 12(b)(1)
motions in particular, “[t]he plaintiff must assert facts that affirmatively and
plausibly suggest that the pleader has the right he claims (here, the right to
jurisdiction), rather than facts that are merely consistent with such a right.” Stalley
v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007).
In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243-44 (3d
Cir. 2012).4
Defendants argue that: 1) Counts I-VIII of the CWA Complaint and the imminent and
substantial danger claim in the RCRA Complaint should be dismissed or stayed based on the
doctrine of primary jurisdiction abstention; 2) Counts I, II, III, IV, VII and VIII should be
dismissed to the extent that they encompass NPDES permitting requirements for nonpoint
sources, which are not within the scope of CWA citizen suits; 3) Counts I, II, III, IV, VII and
VIII should be dismissed to the extent they allege a failure to obtain a CWA permit for a point
source discharge because PPG does have authorization to discharge through Outfall 001 (and
4
Plaintiffs cite a case from the Ninth Circuit which stated that Twombly and Iqbal are “illsuited” to the issue of standing. Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011).
However, as Defendants observe, the Court of Appeals for the Third Circuit in Schering Plough
has incorporated Twombly and Iqbal into its standing analysis, and that decision is binding on
this Court.
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PPG did not have to obtain a permit other than for Outfall 001 because Ford City was the owner
or operator of the Site at all relevant times, and the CWA, enacted in 1972, cannot be applied
retroactively) and PPG is complying with the 2009 Administrative Order by treating for pH (and
to the extent Plaintiffs are challenging the treatment of other pollutants, they are not covered by
the Order and thus Plaintiffs are attacking PADEP’s judgment); 4) Counts V and VI must be
dismissed because CWA allows for citizen suits to enforce effluent standards and limitations, not
arising out of failure to contain a schedule for the application of NPDES permits and, in any
event, the Plan did contain a schedule and PADEP approved it; 5) Counts IX and X must be
dismissed for failure to comply with mandatory notice requirements in that there is no list of
discharge violations for July 2010 or November 2010; 6) Counts IX and X must also be
dismissed because they concern only past violations, not ongoing ones; 7) Counts XI and XII
must be dismissed because they concern only past reporting violations, not ongoing ones; 8) the
RCRA Complaint fails to state an imminent and substantial danger claim as to plumbing fixture
landfill or the baseball fields (PPG had no involvement with them); and 9) Plaintiffs lack
standing to pursue RCRA and CWA claims because citizen suits do not automatically confer
standing and groups do not have unique, particularized interest beyond that possessed by the
public at large. Ford City incorporates PPG’s arguments and also argues that the RCRA
Complaint contains no allegations that it had any involvement, let alone the active involvement
required for liability, with the waste at issue.
Plaintiffs respond that: 1) the doctrine of primary jurisdiction does not apply; 2) Counts I
and II are properly asserted under the CWA which regulates only point source discharges and
Counts III, IV, VII and VIII are properly asserted under the CSL which regulates both point
source and nonpoint source discharges; 3) Plaintiffs do not complain of only one point source
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discharge (Outfall 001), but also allege discharges from the “Drainage Ditch,” culverts and
seeps, all of which are point sources, and these allegations are sufficient to withstand a motion to
dismiss, Plaintiffs are alleging that PPG must have an NPDES permit to discharge pollutants
through each point source on the Site, not just for Outfall 001, the 2009 Administrative Order is
not an NPDES permit or a substitute for one, PPG’s argument that it is not the owner or operator
of the Site contradicts the allegations of the complaints and documents of record (and under the
CWA, PPG can be held liable for discharging pollutants whether it owns or operates the Site or
not), Plaintiffs are seeking to hold PPG liable for discharges after the CWA became effective,
and whether PPG is complying with the 2009 Administrative Order is a matter in dispute; 4)
Counts V and VI arise out of the 2009 Administrative Order and are not moot because nothing in
PADEP’s November 9, 2011 letter (assuming it can be considered) substantively addresses
PPG’s proposed Treatment Plan; 5) Plaintiffs provided adequate notice of the violations in
Counts IX and X and PPG’s contention to the contrary cites a few typographical errors that in no
way prevented PPG from being able to identify the relevant violations; 6) Counts IX and X
properly allege ongoing discharge violations; 7) Counts XI and XII properly allege ongoing
reporting violations; 8) the RCRA Complaint extends to the full property, including the ballfields
and the plumbing fixture landfill area; and 9) Plaintiffs have properly pled that they have
standing, both as organizations which have suffered injury from PPG’s pollution and as
representatives of thousands of members who reside in the vicinity of, or own property or
recreate in, on or near the waters of the Allegheny River affected by the discharge of pollutants
from the Site. Finally, with respect to Ford City’s motion to dismiss, Plaintiffs respond that they
do not state any causes of action against Ford City, but it is named as an indispensable party
pursuant to Federal Rule of Civil Procedure 19(a) based on its status as owner of the Site.
15
In its reply brief, PPG argues that: 1) Plaintiffs cannot allege that leachate seeps and
uncontrolled storm water discharges are point source discharges, because this is a legal issue and
under the law, these discharges are nonpoint source discharges for which no permit is necessary,
and requiring a permit to address PPG’s historical disposal or industrial activities would
constitute retroactive application of the CWA; 2) Counts I-IV alleged only one point source,
Outfall 001, and since this discharge has been mandated by PADEP’s 2009 Order and July 2
Addendum, it is “permitted” or “authorized” within the meaning of the CWA, and even if the
Court determined that PPG is liable for failing to have a formal NPDES permit, the only relief
the Court could provide would be either for PPG to obtain a permit -- which PADEP has already
done -- or for PPG to eliminate the discharges from the Site -- which would conflict with
PADEP’s order; 3) Plaintiffs cannot allege that there are “ongoing violations” as they have cited
only discrete instances of effluent exceedances, and there are no ongoing reporting violations; 4)
with respect to the Eljer landfill, Plaintiffs have failed to allege that PPG handled, stored, treated,
transported, or disposed of solid waste or hazardous waste in these areas, thus the RCRA claims
are missing this essential element; 5) under controlling Third Circuit precedent, Plaintiffs lack
both representational standing, particularly because they have not alleged how a favorable
decision would redress their individual members’ alleged injuries, and standing in their own
right, because they allege only an injury to their organizational missions, which is insufficient,
nor can they establish “informational” injury based on reports that PPG submitted a few days late
to PADEP; and 6) Plaintiffs falsely contend that the records to which PPG refers are not public
records and erroneously argue about subject matter jurisdiction when PPG is contending that the
Court should decline to exercise its jurisdiction based on the doctrine of primary jurisdiction, and
their arguments fail because PADEP is actively involved in enforcement and oversight of the
16
Site.
Standing
As noted above, the issue of standing challenges the Court’s subject matter jurisdiction.
Ballentine, 486 F.3d at 810. Therefore, this issue must be addressed first. See Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 93-102 (1998).
The Supreme Court has held that:
In every federal case, the party bringing the suit must establish standing to
prosecute the action. “In essence the question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues.”
Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The
standing requirement is born partly of “‘an idea, which is more than an intuition
but less than a rigorous and explicit theory, about the constitutional and prudential
limits to the powers of an unelected, unrepresentative judiciary in our kind of
government.’” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d
556 (1984) (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178–1179
(C.A.D.C. 1982) (Bork, J., concurring)).
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). The Court explained that:
our standing jurisprudence contains two strands: Article III standing, which
enforces the Constitution’s case-or-controversy requirement, see Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559–562, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992); and prudential standing, which embodies “judicially self-imposed limits
on the exercise of federal jurisdiction,” Allen, 468 U.S., at 751, 104 S.Ct. 3315.
The Article III limitations are familiar: The plaintiff must show that the conduct
of which he complains has caused him to suffer an “injury in fact” that a
favorable judgment will redress. See Lujan, 504 U.S., at 560–561, 112 S.Ct. 2130.
Although we have not exhaustively defined the prudential dimensions of the
standing doctrine, we have explained that prudential standing encompasses “the
general prohibition on a litigant’s raising another person’s legal rights, the rule
barring adjudication of generalized grievances more appropriately addressed in
the representative branches, and the requirement that a plaintiff’s complaint fall
within the zone of interests protected by the law invoked.” Allen, 468 U.S., at
751, 104 S.Ct. 3315. See also Secretary of State of Md. v. Joseph H. Munson Co.,
467 U.S. 947, 955–956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). “Without such
limitations—closely related to Art. III concerns but essentially matters of judicial
self-governance—the courts would be called upon to decide abstract questions of
wide public significance even though other governmental institutions may be
more competent to address the questions and even though judicial intervention
may be unnecessary to protect individual rights.” Warth, 422 U.S., at 500, 95
17
S.Ct. 2197.
Id. at 11-12. An association may have standing in its own right or as a representative of its
members who have been injured in fact. Pennsylvania Psychiatric Society v. Green Spring
Health Servs., Inc., 280 F.3d 278, 283 (3d Cir. 2002) (citations omitted).
However, the manner in which standing must be supported depends upon the stage of the
litigation at which the issue is raised:
At the pleading stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that
general allegations embrace those specific facts that are necessary to support the
claim.” [Lujan v.] National Wildlife Federation, 497 U.S. [871], 889, 110 S.Ct.
[3177,] 3189 [(1990)]. In response to a summary judgment motion, however, the
plaintiff can no longer rest on such “mere allegations,” but must “set forth” by
affidavit or other evidence “specific facts,” Fed.Rule Civ.Proc. 56(e), which for
purposes of the summary judgment motion will be taken to be true. And at the
final stage, those facts (if controverted) must be “supported adequately by the
evidence adduced at trial.” Gladstone [Realtors v. Village of Bellwood], 441 U.S.
[91], at 115, n. 31, 99 S.Ct. [1601,] 1616 n.31 [(1979)].
Defenders of Wildlife, 504 U.S. at 561.
In a case involving an association (FOE) that brought a citizen suit under the CWA
alleging noncompliance with an NPDES permit, the Supreme Court explained that:
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130,
119 L.Ed.2d 351 (1992), we held that, to satisfy Article III’s standing
requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision. An association has standing to bring
suit on behalf of its members when its members would otherwise have standing to
sue in their own right, the interests at stake are germane to the organization’s
purpose, and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. Hunt v. Washington State
Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383
(1977).
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs (TOC), Inc., 528 U.S. 167, 180-81 (2000).
18
“The relevant showing for purposes of Article III standing … is not injury to the environment but
injury to the plaintiff.” Id. at 181. In addition, “a plaintiff must demonstrate standing separately
for each form of relief sought.” Id. at 185. The Court observed that “environmental plaintiffs
adequately allege injury in fact when they aver that they use the affected area and are persons for
whom the aesthetic and recreational values of the area will be lessened by the challenged
activity.” Id. at 183 (citations omitted). The Court held that FOE demonstrated on a fully
developed record that it had standing to seek both injunctive relief and civil penalties when it
submitted affidavits from various members indicating that they used the North Tyger River and
the area around it for fishing, camping, swimming, picnicking and other activities, but could not
do so any longer because of Laidlaw’s discharges into the river. Id. at 181-84. See also
Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 254 (3d Cir. 2005) (although a
plaintiff must have suffered an invasion of a concrete and particularized legally protected
interest, “an identifiable trifle is enough.”)
PPG cites Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron,
Inc., 123 F.3d 111 (3d Cir. 1997). In that case, the Court of Appeals held that the plaintiff
(PIRG) did not meet the standing requirement when it alleged that its members’ enjoyment of the
Delaware River was lessened because they “knew” that it had been polluted, noting that this was
a “generalized grievance” that was not a judicially cognizable injury. Id. at 120-21. Plaintiffs
respond that Magnesium Elektron: 1) is not good law because it was implicitly overruled by the
Supreme Court’s holding in Laidlaw that the relevant issue is injury to the plaintiff, not the
environment; and 2) was a case about representational standing, but the Court must first
determine whether they have standing in their own right, which they have met by citing their
members’ alleged injuries based on discharges that are alleged to cause serious harm to the
19
environment.
Plaintiffs have demonstrated that Magnesium Elektron is distinguishable from this case,
because they are not merely alleging that their members’ enjoyment of the environment has been
lessened because they “know” that it has been polluted. In addition, that case was decided at the
post-trial stage, not upon a motion to dismiss.5
PennEnvironment has approximately 15,000 members and Sierra Club has 24,000
members living in Pennsylvania, many of whom reside in counties that border the Allegheny
River, and members of both groups “reside in the vicinity of, or own property or recreate in, on,
or near the waters of the Allegheny River affected by the discharge of pollutants from the PPG
Waste Site.” (CWA Compl. ¶¶ 7-9.) Plaintiffs have alleged that “PPG’s discharge of pollutants
… has adversely affected, is adversely affecting, and will continue adversely to affect, the health,
economic, recreational, aesthetic, and environmental interests of PennEnvironment and the
Sierra Club’s members” and that their “ability to protect and improve the waters of Pennsylvania
requires accurate and complete information regarding the discharge of pollutants,” and PPG’s
actions interfere with their efforts. (CWA Compl. ¶¶ 9, 10.) As Plaintiffs note, the allegations of
the CWA Complaint are nearly identical to allegations made (by the same lead counsel) and
found to be sufficient in the Laidlaw case. (ECF No. 43 Ex. 11 ¶¶ 8, 9.) They contend that there
is “nothing ‘improbable’ about the proposition that a company’s continuous and pervasive illegal
5
PPG also argues that this Court has cited Magnesium Elektron with approval as recently as
2011 in PennEnvironment v. Genon Northeast Mgmt. Co., Civ. A. No. 07-475. In the Court’s
first citation to Magnesium Elektron, it was noted that, although generalized grievances shared
by the public at large are insufficient to confer standing, “where an environmental plaintiff has
demonstrated that his or her use of the affected area has been curtailed or that the aesthetic and
recreational value of the area has been or will be lessened, an injury in fact will be found.” ECF
No. 81 at 19 (Oct. 8, 2010). Subsequently, in an opinion granting the plaintiffs’ motion for
partial summary judgment, the Court found that the testimony of several individuals “all but
mirrored” that set forth in Laidlaw and was sufficient. ECF No. 117 (Mar. 21, 2011).
20
discharges of pollutants into a river would cause nearby residents to curtail their recreational use
of that waterway and would subject them to other economic and aesthetic harms.” Laidlaw, 528
U.S. at 184. See also Building & Constr. Trades Council of Buffalo, N.Y. & Vicinity v.
Downtown Dev., Inc., 448 F.3d 138, 146 (2d Cir. 2006) (accepting similar allegations as
sufficient for standing purposes).
In addition, Plaintiffs allege in the RCRA Complaint that PPG’s discharges may present
an imminent and substantial endangerment to human health and the environment, citing
PADEP’s 2009 Administrative Order which details the “significant threat to public health and
the environment.” (RCRA Compl. ¶ 27.) The complaints cite the Order’s statement that “[t]he
industrial waste discharges from the Site, which are pollutional and have a very high pH and
contain metals and other toxic chemicals, continue unabated as of the date of this Administrative
Order.” (RCRA Compl. ¶ 31; CWA Compl. ¶ 30.) The complaints specify, inter alia, that
leachate seeps from PPG’s slurry lagoons “at various locations” into the Allegheny River and
Glade Run, including “through fissures on the cliff face on the south side of the PPG Waste Site”
and “through an outfall constructed by PPG.” (RCRA Compl. ¶ 29; CWA Compl. ¶ 28.) As a
consequence, Plaintiffs allege that PPG’s pollution “present[s] or may present an imminent and
substantial endangerment to human health and/or the environment due to the level of
contaminants including arsenic, chromium, lead, manganese, copper, zinc, mercury, antimony,
barium, beryllium, iron, vanadium, aluminum, total dissolved solids or salts, and semi-volatile
organic compounds.” (RCRA Compl. ¶ 32.) They contend that these allegations are more than
sufficient to confer standing. See Village of Riverdale v. 138th Street Joint Venture, 527 F.
Supp. 2d 760, 765 (N.D. Ill. 2007) (finding sufficient the allegations that the defendants'
“activities have caused, and continue to cause, the release of solid wastes to air, soils, subsurface
21
soils, sediments, surface water and groundwater and physical structures at the Subject Property,
which release presents an imminent and substantial endangerment to health or the environment,
within the meaning of 42 U.S.C. § 6972(a)(1)(B).”)
Plaintiffs argue that they do not need to identify specific members who have been injured
at this stage of the proceedings. See Building & Constr. Trades Council, 448 F.3d at 145 (there
is no authority for the proposition that an association must “name names” in a complaint in order
properly to allege injury in fact to its members.)6 They further contend that they have adequately
pled the relief they seek: an injunction against unpermitted discharges (CWA Compl. at 23 ¶ C),
remediation of the contaminated sediments in the Allegheny River and Glade Run (id. ¶ D;
RCRA Compl. at 10 ¶ C), remediation of the Site (id. ¶ B), an injunction against contamination
of surface water and groundwater (id. ¶¶ D-E) and civil penalties (CWA Compl. at 23 ¶ E.)
They note that this is more than was pled in Village of Riverdale, 527 F. Supp. 2d at 767, which
was held to be sufficient.
Plaintiffs contend that they not just alleged a generalized grievance that inures to the
benefit of all citizens, but have instead alleged specific and concrete ways in which PPG’s CWA
violations interfere with their particular interests. Specifically, they have alleged that PPG’s
discharges have interfered with their efforts to conserve, protect and restore Pennsylvania’s
waterways. Moreover, they allege that PPG’s failure to obtain permits and comply with those
permits’ discharge, monitoring and reporting violations: “interfere with the efforts of
PennEnvironment and the Sierra Club to assess the compliance status of Pennsylvania
dischargers with water pollution control laws and report such status to their members”;
6
In the alternative, they have supplied five affidavits of members who assert that PPG’s actions
have harmed their organizations’ ability to protect and preserve Pennsylvania’s rivers and
streams and their own ability to enjoy the environment. (ECF No. 43 Exs. 6-10.)
22
“interfere with the efforts of [Plaintiffs] to propose legislation to amend the Clean Water Act or
the Clean Streams Law”; and interfere with Plaintiffs’ efforts to “bring litigation to prevent
violations by PPG and thereby protect the waters of the Allegheny River affected by the
discharge from the PPG Waste Site.” (CWA Compl. ¶ 10.) They argue that this kind of
informational injury has been recognized by various courts. See American Canoe Ass’n, Inc. v.
City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 546 (6th Cir. 2004) (“the injury alleged
is not that the defendants are merely failing to obey the law, it is that they are disobeying the law
in failing to provide information that the plaintiffs desire and allegedly need. This is all that
plaintiffs should have to allege to demonstrate informational standing where Congress has
provided a broad right of action to vindicate that informational right.”); Sierra Club v. Simkins
Indus., Inc., 847 F.2d 1109, 1113 (4th Cir. 1988) (“As a result of [CWA monitoring and
reporting] violations, information on any harmful level of pollutants … during this time period is
forever lost to environmental planners and policymakers and those who might undertake to
remedy the effects of any pollution.”)
PPG responds that these alleged “informational injuries” appear to arise out of instances
in which it submitted reports to PADEP a few days after they were due (CWA Compl. Ex. 3),
making them both “implausible” under Iqbal and unredressable in any event, since the reports
have in fact been submitted. However, PPG cites no authority in support of this “de minimis
injury” argument. Plaintiffs have alleged that PPG consistently fails to submit its reports on
time, as required by the July 2 Addendum, and this is sufficient to confer standing for this
informational injury.
As Plaintiffs note, they have made allegations found sufficient in other cases to establish
their standing, both individually and as representatives of their members. PPG has not cited a
23
case in which environmental organizations such as PennEnvironment and Sierra Club were
deemed to lack standing in situations comparable to this case. Rather, the cases cited by PPG
either were decided on motions for summary judgment or merely state general legal principles
but do not address circumstances such as those presented in this case. Therefore, the motion to
dismiss the complaints for lack of standing is denied.
Primary Jurisdiction
Defendants argue that Counts I-VIII of the CWA Complaint and the imminent and
substantial danger claim of the RCRA Complaint should be dismissed or stayed based on the
doctrine of primary jurisdiction. Plaintiffs deny that the doctrine applies.
Despite the name, “primary jurisdiction” is not a doctrine which would deprive a federal
court of jurisdiction over a case. Rather, it is:
a doctrine specifically applicable to claims properly cognizable in court that
contain some issue within the special competence of an administrative agency. It
requires the court to enable a “referral” to the agency, staying further proceedings
so as to give the parties reasonable opportunity to seek an administrative ruling.
Referral of the issue to the administrative agency does not deprive the court of
jurisdiction; it has discretion either to retain jurisdiction or, if the parties would
not be unfairly disadvantaged, to dismiss the case without prejudice.
Reiter v. Cooper, 507 U.S. 258, 268-69 (1993) (footnote and citations omitted). The Court of
Appeals has noted that courts have applied a four-factor test for determining whether a court
should abstain on primary jurisdiction grounds:
(1) Whether the question at issue is within the conventional experience of judges
or whether it involves technical or policy considerations within the agency’s
particular field of expertise; (2) Whether the question at issue is particularly
within the agency’s discretion; (3) Whether there exists a substantial danger of
inconsistent rulings; and (4) Whether a prior application to the agency has been
made.
Raritan Baykeeper v. NL Indus., Inc., 660 F.3d 686, 691 (3d Cir. 2011) (quoting Global Naps,
Inc. v. Bell Atlantic-N.J., 287 F. Supp. 2d 532, 549 (D.N.J. 2003)). In Baykeeper, the district
24
court abstained from a citizen suit brought to bring about the remediation of contaminated
sediments in the Raritan River based on the involvement and expertise of the New Jersey
Department of Environmental Protection (NJDEP). The court relied on both the primary
jurisdiction doctrine and abstention pursuant to Burford v. Sun Oil Co., 319 U.S. 315 (1943).
The Court of Appeals first noted that both RCRA and CWA contain statutory provisions
precluding citizen suits if the Administrator of the EPA or a state is “diligently prosecuting an
enforcement action through formal proceedings.” 660 F.3d at 690-91 (citing 42 U.S.C.
§ 6972(b)(2)(B) & (C) and 33 U.S.C. § 1365(b)(1)(B)). The parties agreed that none of the
statutory exceptions to citizen suits applied. The court then held that the district court erred in
abstaining under the primary jurisdiction doctrine because: 1) while NJDEP had expertise in
environmental matters, federal courts are nonetheless competent to decide such cases, as
evidenced by Congress’s enactment of environmental statutes authorizing citizen suits in federal
court; 2) neither the RCRA nor the CWA charged NJDEP with enforcing federal environmental
laws; 3) there was minimal risk of inconsistent rulings, particularly given that NJDEP’s most
recent ruling concerning the topic was issued in 2004; and 4) application had previously been
made to NJDEP and this factor favored the defendants, but this factor alone was insufficient to
outweigh the others that disfavored abstention on primary jurisdiction grounds. Id. at 691-92.
The court noted that its decision was:
consistent with the decisions of our sister circuits. The First Circuit explained that
federal courts must “exercise great caution in considering abstention,” and that
“the circumstances justifying abstention will be exceedingly rare,” because
declining to hear a case for a reason not enumerated in the RCRA “would
substitute our judgment for that of Congress about the correct balance between
respect for state administrative processes and the need for consistent and timely
enforcement of RCRA.” Chico Serv. Station, Inc. [v. Sol P.R. Ltd.], 633 F.3d
[20,] 31, 32 [(1st Cir. 2011)]. Similarly, the Seventh Circuit observed that, while
“there may be room for applying the doctrines of abstention or primary
jurisdiction ... in cases in which a state has a formal administrative proceeding in
25
progress that the citizens’ suit would disrupt,” abstention in RCRA ordinarily
would amount to “an end run around the RCRA.” PMC, Inc. v. Sherwin–Williams
Co., 151 F.3d 610, 619 (7th Cir. 1998). The same logic also applies to CWA
actions, since that statute similarly provides for citizen suits except under specific,
enumerated circumstances, none of which apply here.
Id. at 694-95.
Although PPG acknowledges the standards set forth in Baykeeper, it does not explain
why the case is distinguishable. As a preliminary matter, it does not argue that any of the
statutory provisions apply.7
With respect to the first factor, PPG argues that this case presents “highly technical”
issues that would be better addressed by the PADEP, specifically:
determining the appropriate treatment technology for the collection and treatment
of the leachate seeps, the extent of contamination at the Ford City Site, its risk to
human health and the environment, the appropriate remediation, the acceptable
level of any remaining contamination, the issuance of a NPDES permit and the
setting of effluent limits.
(ECF No. 25 at 25.) Plaintiffs respond that PPG significantly overstates what the Court will be
required to do in adjudicating their claims. They state that the CWA Complaint will not require
the Court to issue an NPDES permit, set effluent limits, or independently determine appropriate
treatment technology. Instead, the Court will be required to determine whether PPG has violated
the CWA and the CSL, to declare that PPG has committed these violations and enjoin PPG from
discharging pollutants without a permit. Plaintiffs indicate that, with respect to the RCRA
Complaint, the Court will be required to determine whether the Site presents an “imminent and
substantial endangerment” under the statute, which will require an assessment of the
contamination at the Site, and the Court may also be asked to determine the appropriate
7
Plaintiffs note that the CSL also has a statutory provision precluding citizen suits if PADEP is
“diligently prosecuting a civil action in a court of the United States or a state to require
compliance with this act or any rule, regulation, order or permit issued pursuant to this act…” 35
P.S. § 691.601(e). Defendants have not invoked this provision.
26
remediation and whether the remaining contamination is acceptable. However, Plaintiffs note
that other courts have been competent to make such findings based on the expert testimony and
evidence offered by the parties and order necessary relief. See, e.g., Interfaith Cmty. Org. v.
Honeywell Int’l, Inc., 263 F. Supp. 2d 796 (D.N.J. 2003) (assessing expert testimony and making
factual findings and legal conclusions, including as to site remediation, under RCRA), aff’d, 399
F.3d 248, 267 (3d Cir. 2005) (rejecting Honeywell’s argument “that the District Court lacked the
ability to ‘appreciate the inherent complexity and difficulty’ of making ‘sound’ remedial
decisions”); see also O’Leary v. Moyer’s Landfill, Inc., 523 F. Supp. 642, 647 (E.D. Pa. 1981)
(rejecting primary jurisdiction argument against CWA and RCRA citizen suit and holding: “[n]or
are the problems central to this litigation beyond the ordinary competence of a court, especially
given the helpful participation as witnesses of experts from the relevant agencies”).
Plaintiffs further contend that, pursuant to Baykeeper, delineating the specific relief they
seek is not necessary in evaluating this factor: “While NJDEP has expertise in environmental
matters, federal courts are nonetheless competent to decide cases such as the one before us.
Congress decided as much when it wrote the RCRA and CWA to authorize citizen suits in
federal courts.” 660 F.3d at 691. See also Maine People’s Alliance v. Mallinckrodt, Inc., 471
F.3d 277, 293 (1st Cir. 2006) (“[F]ederal courts have proven, over time, that they are equipped to
adjudicate individual cases, regardless of the complexity of the issues involved”); Interfaith
Cmty. Org. v. PPG Indus., Inc., 702 F. Supp. 2d 295, 311 (D.N.J. 2010) (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”); Merry v.
Westinghouse Elec. Corp., 697 F. Supp. 180, 183 (M.D. Pa. 1988) (statutory enforcement
schemes do not pose questions beyond normal competency of courts). As for the CSL, it also
27
has an explicit citizen suit enforcement provision, 35 P.S. § 691.601(c).
PPG argues that the EPA has delegated the primary administration and enforcement of
RCRA and the CWA NPDES program to PADEP (through the CSL) for matters arising under
these statutes in Pennsylvania. In addition, it notes that the EPA (Region 3) and PADEP have
entered into a Memorandum of Understanding whereby the EPA gives PADEP the discretion to
cooperatively implement RCRA’s corrective action clean up requirements at sites through Act 2.
(PPG Ex. 32.) Thus, PPG contends that PADEP is charged with enforcing these statutes such
that this matter is “particularly” within the discretion of PADEP.
Plaintiffs respond that the Court of Appeals held in Baykeeper that:
Although NJDEP generally has discretion over environmental matters, neither the
RCRA nor the CWA charges NJDEP with enforcing those particular statutes.
Indeed, each statute authorizes federal courts to address environmental issues.
Accordingly, this matter is not particularly within the discretion of NJDEP.
660 F.3d at 691-92. NJDEP, just like PADEP, has approval from the EPA to participate in the
NPDES program. 47 Fed. Reg. 17331 (Apr. 22, 1982).
PPG argues that there is a substantial danger of inconsistent rulings, particularly if the
Court were to impose a burden on it above and beyond what PADEP has imposed. However, the
court in Baykeeper noted that “a more stringent remediation standard … is not a reason to invoke
the primary jurisdiction doctrine.” 660 F.3d at 692 (quoting Interfaith Cmty./ PPG, 702 F. Supp.
2d at 312).
PPG makes several arguments as to why the fourth factor weighs in its favor. First, it
argues that the 2009 Administrative Order encompasses the same issues as Plaintiffs’ CWA/CSL
Claims in Counts I-VIII and the claim in the RCRA Complaint. Plaintiffs respond that this
overstates the breadth of the 2009 Administrative Order which, by its terms, concerns discharges
from the Site. (PPG Ex. 2 at 5 ¶ D) (requiring development of Treatment Plan to “collect and
28
treat all industrial waste discharges, Leachate, and seeps from the Site into the waters of the
Commonwealth”). Plaintiffs argue that the RCRA Complaint concerns remediation of the Site
itself, not just management of the discharges and thus the 2009 Administrative Order cannot be a
basis for application of the primary jurisdiction doctrine with respect to their RCRA Complaint.
Second, PPG argues that this factor weighs in favor of primary jurisdiction because
PADEP has “undertaken activities and investigations” at the Site since 1971. (ECF No. 25 at 2829.) Plaintiffs do not dispute that PADEP has a long-running interest in the Site, though PPG
itself acknowledges that those activities have at times reached a “standstill.” (Id. at 29.)
However, they argue that the fact that PADEP has attempted, since 1971, to have PPG either
eliminate or treat discharges from the Site cannot credibly be a basis for determining that the
primary jurisdiction doctrine should be applied. The fact that the agency is still working on the
same goal 42 years later is evidence of the necessity of this citizen suit, rather than its
redundancy. See Interfaith Cmty./Honeywell, 399 F.3d at 265-66 (“20 years of permanent cleanup inaction” by the NJDEP justified court-ordered remediation).
Third, PPG states that it has submitted an NIR under Act 2 with respect to the Slurry
Lagoon Area and Solid Waste Disposal Area. Plaintiffs respond that PPG’s submission of an
NIR under Act 2 does not weigh in favor of the application of primary jurisdiction since Act 2 is
a voluntary remediation statute. See 35 P.S § 6026.102(2) (“Incentives should be put in place to
encourage responsible persons to voluntarily develop and implement cleanup plans without the
use of taxpayer funds or the need for adversarial enforcement actions by the [PADEP] which
frequently only serve to delay cleanups and increase their cost”). In addition, they note that
PADEP acknowledged receipt of the NIR on May 22, 2001, nearly 12 years ago. (PPG Ex. 18.)
PPG characterizes the NIR as “pending” (ECF No. 25 at 17) and states that it will continue to
29
carry out remediation under Act 2 after it has received approval on a final treatment system for
the leachate seeps (id. at 23). Plaintiffs note that PPG had nearly eight years to carry out
remediation between PADEP’s receipt of the notice of intent to remediate and the issuance of the
2009 Administrative Order. Plaintiffs contend that PPG’s voluntary notice of intent to
remediate, still pending after a decade, does not support the application of the primary
jurisdiction doctrine on the grounds of overriding PADEP involvement.
Finally, PPG argues that there is “no question that relevant agency proceedings have been
initiated” since the issuance of the 2009 Administrative Order. (ECF No. 25 at 28.) PPG notes
that the PADEP is currently reviewing the Treatment Plan it submitted in December 2012 that
addresses the remediation of the leachate seeps. Thus, it contends that this case differs from
Baykeeper, in which the state agency had not taken action on the site nor required the defendants
to undertake any further investigation or remediation prior to the filing of the lawsuit.
Plaintiffs respond that those agency proceedings have no bearing on their RCRA
Complaint and that, as to the CWA Complaint, while the 2009 Administrative Order represents
more recent oversight by PADEP of the Site, it cannot undo 42 years of delay. Moreover, there
was still more than a two-year delay between PPG’s submission of the June 2009 Treatment Plan
(PPG Ex. 28) and PADEP’s November 9, 2011, approval letter (PPG Ex. 30). Plaintiffs submit
that, viewing the period over which PADEP and PPG have been negotiating remediation of the
site, this factor weighs in their favor. Moreover, they contend that, even if the Court were to
determine that this factor weighs in PPG’s favor, that is not sufficient for the application of the
primary jurisdiction doctrine because the other three factors weigh decisively against the
application of primary jurisdiction. Baykeeper, 660 F.3d at 692 (“this single factor cannot
outweigh the others that disfavor abstention on primary jurisdiction grounds”).
30
PPG cites three cases from district courts within the Tenth Circuit to support its position:
McCormick v. Halliburton Co., 2012 WL 1119493 (W.D. Okla. Apr. 3, 2012), Davies v.
National Cooperative Refining Association, 963 F. Supp. 990 (D. Kan. 1997), and Friends of
Santa Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333 (D.N.M. 1995). In McCormick, a
district court invoked the doctrine of primary jurisdiction to abstain from hearing an RCRA
citizen claim involving pollution of the groundwater by ammonium perchlorate because of the
involvement of the Oklahoma Department of Environmental Quality (“ODEQ”). The court,
applying a different version of the primary jurisdiction factors, concluded that: 1) the RCRA
claim raised issues outside the conventional experience of judges and within the special expertise
of the ODEQ, namely the extent of the threat, whether immediate remediation was required and
what type of remedy was best suited to the site; 2) the court’s involvement would create a great
potential for conflicting orders if it approved of a different work plan or remediation plan; 3)
Halliburton and the ODEQ had entered into a Consent Order pursuant to which Halliburton was
obligated to cooperate with the ODEQ in investigating and remediating the matter; 4) the ODEQ
had been diligent in responding once Halliburton notified it of the perchlorate; and 5) because
the plaintiffs were requesting injunctive relief, there was an even greater likelihood that the
court’s order could interfere with the administrative agency’s proceedings. Id. at *2-3. The
court cited several previous cases from within the Tenth Circuit, including Davies and Santa Fe.
Id. at *2.
Plaintiffs respond that the Court of Appeals in Baykeeper explicitly distinguished both
Davies and Santa Fe: in Santa Fe the state environmental agency conducted extensive hearings,
in which the plaintiffs participated, which required the defendants to undertake specific
investigation and remediation efforts, but they were not satisfied with the agency’s decision; and
31
in Davies, the plaintiffs sought relief that would have directly conflicted with a state
environmental agency action when the defendant agreed in a settlement to continue pumping an
aquifer as part of its remediation efforts but the plaintiffs complained that the pumping was
contributing to pollution on their property. “Here, by contrast, Raritan Baykeeper’s suit does not
amount to a ‘collateral attack’ on an NJDEP decision, nor does it seek a remedy that necessarily
conflicts with any agency order.” 660 F.3d at 692.
As Plaintiffs note, this case resembles Baykeeper and not the Tenth Circuit district court
cases on which PPG relies. Plaintiffs do not allege that an action by PPG which has been
authorized by PADEP is contributing to pollution, nor are they mounting a collateral attack on
PADEP’s decisions. Moreover, the standards applied in McCormick, Santa Fe and Davies are
not the same as the standards applied by the Court of Appeals in Baykeeper, and the latter are
binding on this Court. Thus, the “type of relief requested” is not a factor to be considered, the
question is not whether the defendant “could” be subject to conflicting orders but whether there
is a “substantial danger” of this occurring, the possibility of a more stringent remediation
standard is not a reason to abstain, and the court in Baykeeper emphasized the citizen suit
provisions of the RCRA and CWA whereas the district court cases appeared more willing to rely
on the “special expertise” of state environmental agencies. See also Interfaith Cmty./PPG, 702
F. Supp. 2d at 312 (declining to follow Davies’ application of primary jurisdiction abstention). It
is also noted that the decision in McCormick applied only to the RCRA claim, not any of the
other claims asserted in the case.
Applying the relevant factors, PPG has not demonstrated that this case is “one of those
exceptional cases that calls for primary jurisdiction abstention.” Baykeeper, 660 F.3d at 692.
While PADEP has expertise in environmental matters, this Court is competent to decide the case,
32
as evidenced by Congress’s enactment of environmental statutes authorizing citizen suits in
federal court, and to grant Plaintiffs’ requested forms of relief. Second, although PADEP
manages the NPDES program in Pennsylvania, neither the RCRA nor the CWA charges PADEP
with enforcing federal environmental laws. Third, PPG has not shown a “substantial likelihood
of inconsistent rulings,” particularly when its concern appears to be based on the possibility of a
more stringent remediation standard emanating from this Court. Finally, although PADEP
proceedings have been initiated, the fact that the agency has been involved in this matter for 42
years and it is still unresolved does not necessarily favor PPG, but even if it did this factor alone
would be insufficient to outweigh the others that disfavor abstention on primary jurisdiction
grounds. Therefore, PPG’s motion to dismiss this case based on the abstention doctrine of
primary jurisdiction is denied.
Point Source Discharges/Nonpoint Source Discharges
PPG moves to dismiss Counts I, II, III, IV, VII and VIII to the extent they encompass
NPDES permitting requirements for nonpoint source discharges, which are not within the scope
of citizen suits. Plaintiffs respond that these claims are appropriately asserted, either limited to
point source discharges under the CWA or encompassing both point and nonpoint source
discharges as permitted under the CSL.
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).
33
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 argues that the CWA unequivocally only requires NPDES permits for point source
discharges and does not require such a permit for nonpoint source discharges. It argues that
there can be no basis for a citizen suit for failure to obtain a NPDES permit for nonpoint source
discharges. See, e.g., Oregon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842,
849 (9th Cir. 1987) (“[W]e do not believe that the Act allows for the enforcement of state water
quality standards, as affected by nonpoint sources, under the citizen suit provision”); Chesapeake
Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 619-20 (D. Md. 2011)
(“Discharge from migrations of groundwater or soil runoff is not point source pollution,
however, but nonpoint source pollution…. There is no basis for a citizen suit for nonpoint
34
source discharges under the CWA.”) (citations omitted).
The CWA defines a “point source” to be a “discernible, confined and discrete
conveyance.” See 33 U.S.C. § 1362(14). However, a “discharge” occurring through migration of
groundwater and soil runoff (i.e., uncontrolled stormwater runoff) represents “nonpoint source”
pollution because there is no “discernible, confined and discrete conveyance.” See Sierra Club
v. El Paso Gold Mines, 421 F.3d 1133, 1141 n.4 (10th Cir. 2005) (“Groundwater seepage that
travels through fractured rock would be nonpoint source pollution, which is not subject to
NPDES permitting.”); Northwest Envtl. Def. Ctr. v. Brown, 640 F.3d 1063, 1070 (9th Cir. 2011)
(“Stormwater that is not collected or channeled and then discharged, but rather runs off and
dissipates in a natural and unimpeded manner, is not a discharge from a point source.”); Santa
Fe, 892 F. Supp. at 1359 (holding that seepage of pollutants through soil into groundwater is not
a point source, and therefore not subject to NPDES permitting requirements); Sierra Club v.
Abston Constr. Co., 620 F.2d 41, 45 (5th Cir. 1980) (finding that gravity flow, resulting in a
discharge into a navigable body of water, may be part of a point source discharge only if the
water was at least initially collected or channeled); Cordiano v. Metacon Gun Club, Inc., 575
F.3d 199, 220 (2d Cir. 2009) (“Nonpoint sources include pollution from diffuse land use
activities such as agriculture, construction and mining that enter the waters primarily through
indiscrete and less identifiable natural processes such as runoff, precipitation and percolation.”)
(citation omitted). “Control of nonpoint sources continues to be a primarily a state function, with
indirect federal participation.” Id. (citation omitted).
PPG argues that one court has specifically held that “seeps,” almost identical to the ones
Plaintiffs describe in their CWA Complaint, are nonpoint sources. Santa Fe, 892 F. Supp. at
1359 (“the seeps merely represent evidence that [acid mine drainage] has at some time in [the]
35
past entered subsurface waters, possibly from the overburden pile or the remediation system. In
other words, the seepages are non-point source carriers of pollutants . . . and are therefore not
subject to the Act’s permitting requirements.”).
Plaintiffs agree that the CWA regulates only point source discharges. (ECF No. 43 at
30.) However, they note that Count I specifically alleges that PPG is unlawfully discharging
pollutants into navigable waters without an NPDES permit in violations of Sections 301(a) and
402 of the CWA. Count II alleges that PPG has violated 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. Thus, they contend that these claims are already
limited to point source discharges.
Contrary to PPG’s assertion, Plaintiffs have not merely alleged the existence of storm
water discharges (which do not require a permit), but storm water discharges “associated with
industrial activity” (which do require a permit), emanating from PPG’s glass manufacturing
plant. According to EPA regulations “storm water” “means storm water runoff, snow melt
runoff, and surface runoff and drainage.” 40 C.F.R. § 122.26(b)(13). The phrase “storm water
discharge associated with industrial activity” means:
the discharge from any conveyance that is used for collecting and conveying
storm water and that is directly related to manufacturing, processing or raw
materials storage areas at an industrial plant. The term does not include discharges
from facilities or activities excluded from the NPDES program under this part
122. For the categories of industries identified in this section, the term includes,
but is not limited to, storm water discharges from industrial plant yards;
immediate access roads and rail lines used or traveled by carriers of raw materials,
manufactured products, waste material, or by-products used or created by the
facility; material handling sites; refuse sites; sites used for the application or
disposal of process waste waters (as defined at part 401 of this chapter); sites used
for the storage and maintenance of material handling equipment; sites used for
residual treatment, storage, or disposal; shipping and receiving areas;
manufacturing buildings; storage areas (including tank farms) for raw materials,
and intermediate and final products; and areas where industrial activity has taken
36
place in the past and significant materials remain and are exposed to storm water.
For the purposes of this paragraph, material handling activities include storage,
loading and unloading, transportation, or conveyance of any raw material,
intermediate product, final product, by-product or waste product. The term
excludes areas located on plant lands separate from the plant's industrial activities,
such as office buildings and accompanying parking lots as long as the drainage
from the excluded areas is not mixed with storm water drained from the above
described areas.
40 C.F.R. § 122.26(b)(14). The regulation then goes on to list eleven “categories of
facilities” that are considered to be engaging in “industrial activity.”
Determining whether a storm water discharge is “associated with industrial activity” and
therefore requires a permit is not necessarily straightforward or an easy process. Compare
Decker, 133 S.Ct. at 1336-38 (deferring to the EPA’s interpretation, although it was not
necessarily “the best one,” that channeled storm water runoff from logging roads was not
“associated with industrial activity” because the conveyances at issue were “directly related”
only to the harvesting of raw materials, rather than to “manufacturing, processing, or raw
materials storage areas at an industrial plant”) with id. at 1343 (Scalia, J., dissenting) (noting that
the EPA’s own regulation interpreting the phrase “associated with industrial activity” refers to
“facilities classified as Standard Industrial Classification 24,” which includes the industry of
“logging.”); Brown, 640 F.3d at 1083-84 (same) In considering a complaint on a motion to
dismiss, it is certainly plausible that Plaintiffs’ allegation that PPG’s glass manufacturing plant
generated “storm water discharge associated with industrial activity” states a claim under the
CWA. PPG has not provided sufficient analysis of the issue to say otherwise. Whether this
claim survives full discovery and a motion for summary judgment or trial is another matter.
Therefore, the motion to dismiss Counts I and II on the basis that they allege nonpoint source
discharges is denied.
Plaintiffs acknowledge that Counts III and IV do allege both point and nonpoint source
37
discharges, but argue that they are pled under the CSL, which is more expansive than the CWA
and is not limited to point source discharges. Specifically, Count III alleges that PPG has
violated 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 without a permit. Count IV alleges
that PPG has violated Section 401 of the CSL, 35 P.S. § 691.401, by discharging pollutants and
waste into the Allegheny River, Glade Run and groundwater without a permit.
The CSL provides that:
No person or municipality shall place or permit to be placed, or discharged or
permit to flow, or continue to discharge or permit to flow, into any of the waters
of the Commonwealth any industrial wastes, except as hereinafter provided in this
act.
35 P.S. § 691.301. Plaintiffs argue that, because the act uses the terms “place,” “discharge” and
“flow,” each must have a distinct meaning. None of these words are defined in the CSL,
although “discharge” is defined in the CSL’s implementing regulations as “[a]n addition of any
pollutant to surface waters of this Commonwealth from a point source.” 25 Pa. Code § 92a.2.
The word “flow” is not defined in the regulations.
Under both federal and Pennsylvania principles of statutory construction, meaning should
be given to each word in a statute, if possible, and no word should be construed in such a manner
as to make it superfluous. Duncan v. Walker, 533 U.S. 167, 174 (2001); Tavarez v.
Klingensmith, 372 F.3d 188, 190 (3d Cir. 2004); 1 Pa. C.S. §§ 1921(a), 1922(2); Freundt v.
Commonwealth Dep’t of Transp., Bureau of Driver Licensing, 883 A.2d 503, 506 (Pa. 2005).
Plaintiffs contend that because “discharge” is defined as adding pollutants from a point source,
“flow” must therefore mean issuing pollutants from a nonpoint source. They argue that this
distinction is supported by the ordinary meanings of the terms: “discharge” means “a sending or
coming forth, as of water from a pipe; ejection; emission” or “allow (a liquid, gas, or other
38
substance) to flow out from where it has been confined.” Random House Dictionary of the
English Language, Unabridged 409 (Random House, Inc. 1973); Oxford English Dictionaries
Online, http://oxforddictionaries.com/us. “Flow,” on the other hand, means “to move along in a
stream, as water or other liquid”; “to cover with water or other liquid; flood”; “(of a fluid, gas, or
electricity) move along or out steadily and continuously in a current or stream”; or “to issue or
move in a stream” or “to move with a continual change of place among the constituent particles
”, Random House Dictionary at 546; Oxford Dictionaries Online;
Merriam-Webster Online, http://www.meriam-webster.com.
Plaintiffs observe that this reading is further supported by the PADEP 2009
Administrative Order, which found that PPG’s discharge, which includes “[p]recipitation which
infiltrates the Slurry Lagoons and the Landfill at the Site[,] becomes contaminated with
hazardous substances … and then is discharged into the waters of the Commonwealth” and
termed this discharge the “Leachate.” (PPG Ex. 2 ¶ 14.) PADEP further found that “[t]he
Leachate discharges seep out of the Slurry Lagoons and the Landfill at various locations at the
Site and then flow or are conveyed into the waters of the Commonwealth.” (Id. ¶ 15.) The
Order covers both the leachate that seeps and flows to waters of the Commonwealth and the
leachate that seeps and is conveyed to waters of the Commonwealth. Thus, Plaintiffs contend,
the Order is not limited to only point source discharges from the Site. The Order concluded that
the discharges constitute industrial waste and pollutants (as defined in 35 P.S. § 691.1 and 25 Pa.
Code § 91.1, respectively) and that they “result or may result in pollution of waters of the
Commonwealth, in violation of Sections 401 and/or 402 of The Clean Streams Law, 35 P.S.
§§ 691.401, 691.402.” (Id. ¶ 16.) The Order further stated that Sections 301 and 307 of the
CSL, 35 P.S. §§ 691.301, 691.307, prohibit discharge of industrial waste unless authorized by
39
rules, regulations, or permit and that “PPG’s discharges of industrial waste into the Allegheny
River and Glade Run are not authorized by the rule and regulations of the Department, and PPG
does not have a permit for those discharges from the Department.” (Id. ¶¶ 17-18.)
In its reply brief, PPG argues that Plaintiffs are relying on CSL implementing regulations
to contend that it is responsible for nonpoint source discharges without an NPDES permit, but
the CWA does not require permits for nonpoint source discharges, and they argue that Plaintiffs
have cited no authority that PADEP requires authorization or permits for nonpoint source
discharges. The Court concludes that Plaintiffs have raised the issue that the CSL is not limited
to point source discharges, but rather also extends to nonpoint source discharges that “flow” as
this word would otherwise be surplussage in the statute. PPG has not responded to this
argument. Therefore, its attempt to limit the CSL to point source discharges is rejected and its
motion to dismiss Counts III and IV on the basis that they allege nonpoint source discharges is
denied.
Failure to Obtain an NPDES Permit
PPG argues that, in essence, Counts I-IV allege that it failed to obtain an NPDES permit
for a point source discharge for Outfall 001. However, PPG maintains that it has authorization
from PADEP to discharge through Outfall 001 pursuant to the 2009 Administrative Order. The
Order directed PPG to create this point source and treat the discharge pursuant to its
authorization for the Interim Abatement Plan. (PPG Exs. 2, 27.) Accordingly, PPG argues that
Counts I through IV must be dismissed because it does in fact have authorization/permit for
Outfall 001 from PADEP.
Plaintiffs respond that they allege not only discharges through Outfall 001, but also from
the “Drainage Ditch,” culverts and seeps, all of which they contend constitute point sources
40
under the CWA, 33 U.S.C. § 1362(14). In addition, even where the seeps do not discharge
directly into navigable waters, they feed contaminated waters that flow into points sources, such
as the Drainage Ditch, culverts and Outfall 001. Moreover, they argue that the 2009
Administrative Order is not an NPDES permit or a substitute for such a permit. Indeed, the 2009
Administrative Order states that PPG lacks a permit for its discharges (PPG Ex. 2 ¶ 18) and
orders PPG to take certain measures until such time as the discharges from across the site are
collected and conveyed to an industrial waste treatment facility and the discharge therefrom is
authorized by an NPDES permit (Id. at 4-5 ¶¶ A, C). Plaintiffs argue that, if the 2009
Administrative Order were deemed to be an NPDES permit, there obviously would have been no
reason for PADEP to require an NPDES permit.
Moreover, they contend that the 2009 Administrative Order could never be the substitute
or equivalent of an NPDES permit. Specific procedural and substantive requirements are
required for issuance of an NPDES permit and none of them have been satisfied here. For
example, public notice and comment must be provided for a draft NPDES permit. See 33 U.S.C.
§§ 1342(a)(3), 1342(b)(3); 40 C.F.R. § 123.25(26)-(33)(listing requirements for an approved
state program), § 124.6(a)(draft permit required unless NPDES permit application denied),
§ 124.6(d)(draft NPDES permit must include effluent limitations), § 124.10(a)(1)(ii)(public
notice of draft permit required), § 124.10(b)(at least 30 days for public comment required),
§ 124.11 (interested persons may submit comments and request hearing), § 124.17 (requires
response to public comments by issuing agency). NPDES permits are required to have effluent
limitations, inter alia, in both their final and draft form. 40 C.F.R. §§ 122.44, 123.25(15),
124.6(d). Pennsylvania has incorporated these provisions into its NPDES program. See 25 Pa.
Code § 92a.3. See also 25 Pa. Code § 92a.53 (requirement for a fact sheet providing basis for
41
requirements in draft or final NPDES permit); § 92a.82 (public notice and comment on draft
NPDES permits), § 92a.86 (response to public comments published with notice of issuance of
final NPDES permit).
Plaintiffs note that nothing in the 2009 Administrative Order indicates that it is an
NPDES permit that was issued following public notice and comment on a draft that included
effluent limitations. Furthermore, PPG has not offered any public records in support of its
motion to dismiss that would demonstrate that the 2009 Administrative Order was issued after
issuance of a draft that included effluent limitations and that was subject to public notice and
comment. Plaintiffs further indicate that they searched the Pennsylvania Bulletin, the publication
where notice of the issuance of a draft or final permit must be provided (25 Pa. Code § 92a.86),
and it revealed that no notice was provided of the 2009 Administrative Order or any other
documents related to PPG and Ford City in 2009. (ECF No. 43 Exs. 2-4 (results of the searches
of the Pennsylvania Bulletin.) Plaintiffs argue that, in the posture of a motion to dismiss, this
Court must accept as true the allegations in the CWA Complaint that the 2009 Administrative
Order is not an NPDES permit (CWA Compl. ¶ 25) and that PPG lacks an NPDES permit for its
discharges (CWA Compl. ¶¶ 37-56). Plaintiffs indicate that, at most, the 2009 Administrative
Order is an authorization to discharge through Outfall 001 the pollutants that have been collected
and treated. It is not an authorization to discharge pollutants through a route other than Outfall
001.
Plaintiffs contend that, even if the July 2, 2009 Addendum were considered as part of the
2009 Administrative Order, it would not make the 2009 Administrative Order an NPDES permit.
The effluent limitations set forth in Attachment A to the July 2 Addendum cannot be treated as
an NPDES permit because they were not established pursuant to public notice and comment.
42
See ECF No. 43 Exs. 2-4. At most, the 2009 Administrative Order and the July 2 Addendum
represent an abatement order which is designed to address PPG’s discharges on an interim basis
and to move PPG toward an NPDES permit. See 25 Pa. Code § 91.13 (“[t]he Department will
require either abatement of the pollution or the submission of a plan and schedule for bringing
the source’s pollutants into compliance through pollution prevention measures, treatment or
other means by a specific date, and shall require progress reports thereon, usually at monthly or
bimonthly intervals as the Department will deem appropriate”).
Moreover, the July 2 Addendum to the 2009 Administrative Order states that:
This authorization does not permit any discharge (storm water or nonstorm water), which contains any pollutant that may cause or contribute to an
impact on aquatic life or poses substantial hazard to human health or the
environment due to its quantity or concentration.
(ECF No. 43 Ex. 1.) Plaintiffs note that they have alleged that PPG’s discharges of metals and
high pH water through Outfall 001 and other locations “may cause or contribute to an impact on
aquatic life or pose substantial hazard to human health or the environment due to [their] quantity
or concentration.” (CWA Compl. ¶¶ 35, 67.) Such discharges would not be authorized by the
July 2 Addendum.
PPG’s argument that Plaintiffs allege only one point source, Outfall 001, does not
withstand scrutiny. Plaintiffs also allege that PPG discharged pollutants from the “Drainage
Ditch,” from seeps and from culverts. PPG argues in a footnote in its reply brief that “Plaintiffs
only make passing reference to the ‘Drainage Ditch’ and culverts in the background section of
their CWA Complaint, which they did not incorporate by reference into any of the twelve CWA
claims.” (ECF No. 45 at 6 n.3.) This hyper technical argument is rejected.8
8
In addition, the Court rejects PPG’s repeated argument that Plaintiffs cannot amend their
complaints because they did not do so in response to the Court’s April 10, 2013 order. See PPG
43
PPG’s argument that the 2009 Administrative Order is the equivalent of an NPDES
permit is unsupported and meritless. The Order contemplated that PPG would require a permit
and none of the administrative procedural or substantive prerequisites of a permit (such as notice
and comment) were observed. Nor are all of PPG’s discharges authorized by the Order, as
Plaintiffs have alleged that PPG’s discharges of metals and high pH water through Outfall 001
and other locations “may cause or contribute to an impact on aquatic life or pose substantial
hazard to human health or the environment due to [their] quantity or concentration.”
Finally, PPG argues that, if the Court determines that it must obtain an NPDES permit,
Plaintiffs lack standing to pursue such a claim because the Court could either order PPG to
obtain a permit, which PADEP has already done, or order it to eliminate discharges, but this
would conflict with PADEP’s order. However, the case it cites, West Coat Home Builders, Inc.
v. Aventis Cropscience USA, Inc., 2009 WL 2612380, at *4 (N.D. Cal. Aug. 21, 2009), not only
was decided on a motion for summary judgment but also involved a situation in which the
defendant was under a consent order to clean up certain contamination, which is not the same as
“relief it is already obtaining outside of this lawsuit” referring to the requirement to obtain an
NPDES permit. This argument is also without merit: as explained above, the possibility of a
more severe remediation from the Court does not constitute a “conflict” for purposes of primary
jurisdiction abstention. Moreover, if PPG is discharging pollutants without a permit, it may be
liable for damages, not just fall subject to an order to obtain a permit. Therefore, this argument
is rejected.
Ownership of the Site
PPG also argues that it cannot be held liable for any discharges from the Site other than
Reply Br. (ECF No. 45) at 1, 12, 13.
44
through Outfall 001 because it sold the property to Ford City in 1972, prior to the time CWA
permitting obligations came into effect. Thus, it contends that any obligation would have fallen
upon Ford City. In addition, it argues that any attempt to impose liability based on its disposal or
“industrial activities” on the Site prior to the enactment of the CWA in 1972 would constitute
improper retroactive application of the statute.
Plaintiffs respond that this argument is based on facts beyond the allegations of the
complaint, the materials integral to the complaint and public records. In addition, it contradicts
the 2009 Administrative Order, which found that the Site “is occupied by PPG as a result of
PPG’s creation of the Slurry lagoons and landfill at the Site,” (PPG Ex. 2 ¶ 20), and that “PPG is
an owner and occupier of the Site. Pollution and the danger of additional pollution are resulting
from the conditions which exist on the Site.” (Id. ¶ 29.) PADEP further found that the source of
the contamination on site and in adjacent waters “is attributed to PPG’s waste disposal
activities.” (Id. ¶13.) PADEP also found that PPG sold the site to the Borough of Ford City for
the sum of one dollar. (Id. ¶ 9.) Therefore, Plaintiffs argue that PADEP, the agency charged with
the issuance of NPDES permits in the Commonwealth of Pennsylvania, has determined that PPG
is an “owner and occupier of the Site” and, as such, it is required to have an NPDES permit for
the discharges from the site. They contend that, for purposes of a motion to dismiss, these facts
must be accepted as true and PPG cannot contradict them.
Furthermore, Plaintiffs observe PPG itself admits to being an owner or operator of the
Site and, as such, submitted the site into the Act 2 process:
The study and remediation of a property under Act 2 can take place either before
or after an owner/operator has formally submitted the property to the Act 2
process…. PPG submitted the Ford City Site to the Act 2 process by filing a
Notice of Intent to Remediate (NIR) in 2001, pursuant to which PPG committed
to ensure that the Ford City Site … met the Act 2 statutory site-specific
remediation standards.
45
(ECF No. 25 at 8.) In conjunction with the Act 2 process and in response to the 2009
Administrative Order, PPG claims to have conducted significant work at the Site. (ECF No. 25
at 6-12.) Plaintiffs contend that these activities are inconsistent with PPG’s claims that it has no
control over the Site.
Plaintiffs contend that the two cases cited by PPG are distinguishable. In Brossman
Sales, Inc. v. Broderick, 808 F. Supp. 1209, 1211-14 (E.D. Pa. 1992), and Friends of Sakonnet v.
Dutra, 738 F. Supp. 623, 632-33 (D.R.I. 1990), the defendants lost control over the pollution
sources, and lacked the control to abate it or to bring about complete compliance. That is not the
situation here. On July 2, 2009, PADEP approved an Interim Abatement Plan submitted by
PPG. (ECF No. 43 Ex. 1.) Plaintiffs argue that the fact that PADEP approved the plan shows
that both PADEP and PPG think that PPG has sufficient control over the Site “to address
contaminated discharges associated with the Ford City Cadogan Disposal Site.” (Id. at 1.) In
addition, PPG has admitted to sufficient control over the Site to commit the site to remediation
under Act 2. (ECF No. 25 at 8.)
Alternatively, Plaintiffs argue that, in the event that PPG is not an owner or operator of
the Site, it is still subject to suit for discharging pollutants in violation of Section 301(a) of the
CWA, 33 U.S.C. § 1311(a). That section prohibits the discharge of pollutants, and that is all.
Having an NPDES permit is an exception to this prohibition, but Section 301(a) does not require
that a person acquire an NPDES permit. Instead, a violation of Section 301(a) can be remedied
by halting or eliminating the discharge. Plaintiffs note that Section 505(a)(1) authorizes citizen
suits against “any person … who is alleged to be in violation of … an effluent standard or
limitation under this Act….” 33 U.S.C. § 1365(a)(1). An effluent standard or limitation is
defined to be, inter alia, “an unlawful act under subsection (a) of section 301 of this Act.” 33
46
U.S.C. § 1365(f)(1). Section 301(a) provides that “the discharge of any pollutant by any person
shall be unlawful” except in compliance with certain sections of the Act. 33 U.S.C. § 1311(a).
A person is defined under the Act to be “an individual, corporation, partnership, association,
State, municipality, commission, or political subdivision of a State, or any interstate body.” 33
U.S.C. § 1362(5). Thus, if PPG is discharging pollutants, it is violating Section 301(a) of the
Act. Likewise, the CSL prohibits the discharge of any industrial waste into the waters of the
Commonwealth by any person, without limitation. 35 P.S. § 691.301.
The Court rejects PPG’s argument that it is not an owner or operator of the Site. Not
only does this contention contradict the allegations of the complaints, but more significantly, it
contradicts PADEP’s findings and PPG’s own actions regarding the Site.
With respect to PPG’s retroactivity argument, Plaintiffs respond that their claims are
directed to PPG’s pollutant discharges that continue to occur every day and have occurred since
the enactment of the CWA. Plaintiffs contend that they are not claiming that PPG was in
violation of Section 301(a) of the Act before it was enacted. Rather, they have alleged that PPG
has been in violation of Section 301(a) since it became effective due to PPG’s lack of a permit
which allows the discharges and prevents a violation of Section 301(a). See CWA Compl. ¶ 23.
Plaintiffs contend that their claims here are no different than claims that could be brought against
a factory established before the enactment of the CWA for discharges in violation of Section
301(a) that have occurred since enactment of the statute. Thus, Plaintiffs are not seeking to
apply the CWA or the CSL retroactively. They note that the 40 years of PPG discharges in
violation of Section 301(a) -- as measured since its effective date -- is already such a long period
of violation that there is no need to pursue retroactive enforcement even if this were possible.9
9
Plaintiffs note that the statute of limitations restricts liability for civil penalties to such
47
Plaintiffs argue that, to the extent that PPG might be arguing that it cannot be held liable
for discharges associated with materials that were created before the enactment of the CWA, the
fact that the pollutants in PPG’s discharges come from such materials is irrelevant. The CWA
defines pollutant to include: “dredged spoil, solid waste, incinerator residue,” “wrecked or
discarded equipment,” “rock,” and “sand.” 33 U.S.C. § 1362(6). This definition includes items
that necessarily would have been created before the enactment of the Act. In Committee to Save
Mokelumne River v. East Bay Municipal Utility District, 13 F.3d 305 (9th Cir. 1993), acid mine
drainage from a property mined from the 1860s through the 1950s, which was carried by rainfall
to the river, was determined to be a discharge that violated Section 301(a) due to the lack of an
NPDES permit. See also O’Leary, 523 F. Supp. at 646, 651-655 (noting that “extensive wastedisposal activities have been carried on for many years” at the landfill; describing a landfill with
sloped sides from which leachate escapes and travels to the nearby streams and creek; finding
that the discharge of the leachate -- rainfall and groundwater that came into contact with landfill
material -- violated the CWA).
The Court concludes that Plaintiffs are not seeking retroactive application of the CWA or
CSL. Rather, they are seeking application of those statutes to discharges that have occurred
post-enactment. Accordingly, this argument is rejected.
Counts V and VI
Plaintiffs in Counts V and VI, respectively, allege claims under the CWA’s and CSL’s
citizen suit provisions for the failure of the Treatment Plan, required under the 2009
Administrative Order, to contain a schedule for the application of NPDES permits. PPG argues
violations occurring five years or less preceding their notice of intent to sue. Public Interest
Research Group of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 73-76 (3d Cir.
1990).
48
that the Court should dismiss these claims because: (1) the CWA’s citizen suit provision only
permits citizens to enforce effluent standards and limitations; (2) the alleged violation is moot
because PADEP approved the Treatment Plan (and the schedule contained therein) and thereby
found the Treatment Plan to be in compliance with the 2009 Administrative Order; and (3)
because PPG has provided a schedule for the application of any necessary permits, including
NPDES permits to PADEP under the Treatment Plan Report. Plaintiffs respond that they have
properly alleged that PPG is violating the 2009 Administrative Order and that their claims are
not moot.
The CWA provides that any citizen may bring suit against any person only for an alleged
violation of “(A) an effluent standard or limitation under this chapter or (B) an order issued by
the Administrator or a State with respect to such standard or limitation.” 33 U.S.C. § 1365(a)(1).
Section 1365(f) defines “effluent standard or limitation” for the purposes of this citizen suit
provision as:
1. an unlawful act under subsection (a) of section 1311;
2. an effluent limitation or other limitation under section 1311 or 1312;
3. a standard of performance under section 1316;
4. a prohibition, effluent standard or pretreatment standard under section 1317;
5. certification under section 1341;
6. a permit or condition thereof issued under section 1342, (including a
requirement applicable by reason of section 1323, which governs pollution
control from federal facilities and is not applicable to this case); or
7. regulation under section 1345(d).
33 U.S.C. § 1365(f). PPG argues that the requirement for the Treatment Plan to include a
schedule for the application of a NPDES permit cannot be construed as an effluent standard or
49
limitation under the plain language of the citizen suit provision for the CWA. Accordingly, a
citizen’s suit for the Treatment Plan to include a schedule for applying for necessary permits is
not authorized and these allegations must be dismissed.
In the alternative, PPG argues that assuming that Plaintiffs could bring a citizen suit for
such a claim, the issue is now moot and therefore, these claims must be dismissed. The
Treatment Plan did contain a schedule in Section 7.0 and PADEP, in fact, approved the
Treatment Plan by letter dated November 9, 2011. (PPG Ex. 28 at Section 7.0; Ex. 30.)
Moreover, PPG has in fact submitted a schedule for applying for the necessary permits to
PADEP in conjunction with the proposed remedy currently in the Treatment Plan Report being
reviewed by PADEP. See PPG Ex. 31 at Section 9.0. Accordingly, PPG argues that Plaintiffs
have no meaningful relief under these claims and therefore this Court lacks jurisdiction over
them pursuant to the mootness doctrine. See Sierra Club v. United States Army Corps of Eng’rs,
277 F. App’x. 170, 172-73 (3d Cir. 2008) (when all but .12 acres of wetlands had been filled and
construction was substantially complete, the court could no longer provide any meaningful
relief).
Plaintiffs respond that Section 1365(f) of the CWA defines “effluent standard or
limitation” as including “(1) … an unlawful act under subsection (a) of section 1311 of this title”
and “(2) an effluent limitation or other limitation under section 1311 or 1312 of this title.”
Paragraph D of the performance obligations of the 2009 Administrative Order requires PPG to
identify in its Treatment Plan, inter alia, “the necessary permit(s) for the authorization of the
discharges associated with the collection and treatment system” and to “provide a schedule for
applying for the necessary permits.” (PPG Ex. 2 at 5.) The 2009 Administrative Order is “an
order issued by … a State with respect to such standard or limitations,” 33 U.S.C.
50
§ 1365(a)(1)(B), since it relates to obtaining a permit with effluent standards.
With respect to Count VI, Plaintiffs argue that the CSL permits suit “against any other
person alleged to be in violation of any provision of this act or any rule, regulation, order or
permit issued pursuant to this act.” 35 P.S. § 691.601(c). The performance obligations in the
2009 Administrative Order, including paragraph D, were issued under the authority of the CSL.
(PPG Ex. 2 at 4.) These performance obligations are part of an order issued pursuant to the CSL.
Plaintiffs assert that Count VI is therefore an appropriate CSL claim involving a violation of that
order.
Plaintiffs also deny that these claims are moot. The Treatment Plan states that the
“[d]esign of selected remedy and submittal of permit applications” are “To Be Determined.”
(PPG Ex. 28 at 25.) Plaintiffs argue that this type of indeterminate timeline is not a schedule in
any meaningful sense. Moreover, they argue that, even if there were a clear schedule it would
hardly establish mootness. The Supreme Court has held that ‘[a] case might become moot if
subsequent events made it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur” and that “[t]he ‘heavy burden of persuading’ the court that the
challenged conduct cannot reasonably be expected to start up again lies with the party asserting
mootness.” Laidlaw, 528 U.S. at 189 (citation omitted).
PPG relies on the November 9, 2011 letter from PADEP (PPG Ex. 30), which addresses
the Treatment Plan. While it is a public document, Plaintiffs contend that the Court has indicated
in its April 10 Order that it will not consider its substance. They argue that PPG’s Treatment
Plan Report (PPG Ex. 31) is not a public document and cannot be considered in the context of
PPG’s motion.
Moreover, Plaintiffs argue that, even considering the November 9, 2011, letter, it says
51
little substantively about the Treatment Plan: “PPG may proceed to implement the investigative
items identified in the treatability plan as submitted.” (PPG Ex. 30 at 1.) The comments relating
to PPG’s proposed schedule are similarly limited: “When the evaluation identified in the
Treatment Plan and Schedule are complete, please advise the Department as PPG indicates that it
will in the Treatment Plan and Schedule. Please submit the results with the recommended
remedy 60 days after completion of the work identified in the Treatability Plan.” (Id.) Nothing in
this letter substantively addresses whether Plaintiffs’ claim is moot.
The Court concludes that both the CWA and CSL allow for a citizen suit arising out of a
defendant’s failure to submit a treatment plan, as ordered by a state, with certain performance
obligations. With respect to PPG’s mootness argument, the Court concludes that the PADEP
documents which can be examined at this stage of the proceedings do not resolve the issue of
whether PPG has met its obligation of providing a schedule and that the Treatment Plan Report
(which was submitted to PADEP in December 2012, after this case was filed, and has not yet
been approved of by that agency) is not a public document that should be examined at this time.
Therefore, Counts V and VI are not moot and PPG’s motion to dismiss them is denied.
Notice Requirements
PPG moves to dismiss Counts IX and X for failure to comply with CWA notice
requirements. In Hallstrom v. Tillamook County, 493 U.S. 20 (1989), the Supreme Court held
that the notice requirements in RCRA “are mandatory conditions precedent to commencing suit
under the RCRA citizen suit provision; a district court may not disregard these requirements at
its discretion.” Id. at 31. Further, the Supreme Court held that it is a court’s nondiscretionary
duty to dismiss a citizen suit that has not complied with the notice requirement. Id. (holding that
when a party files a citizen suit without having complied with the notice requirement, “the
52
district court must dismiss the action as barred by the terms of the statute.”). As with RCRA,
courts have held that the notice provision in the CWA is a “jurisdictional prerequisite.” See
Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc., 50 F.3d 1239, 1251 (3d
Cir. 1995). Thus, in those instances where a plaintiff has failed to comply with the statutory
notice provisions of the CWA, the claims are dismissed.
Pursuant to implementing regulations, notice under the CWA must include, at a
minimum:
. . . sufficient information to permit the recipient to identify the specific standard,
limitation, or order alleged to have been violated, the activity alleged to constitute
a violation, the person or persons responsible for the alleged violation, the
location of the alleged violation, the date or dates of such violation, and the full
name, address, and telephone number of the person giving notice.
40 C.F.R. § 135.3(a). PPG notes that many courts have held that Hallstrom requires strict
compliance with the notice requirements under the various environmental statutes. See e.g.,
Atlantic States Legal Found. v. United Musical Instruments, 61 F.3d 473, 478 (6th Cir. 1995)
(applying Hallstrom to a citizen suit under EPCRA and finding plaintiffs had not strictly
complied with the notice requirements); Frilling v. Village of Anna, 924 F. Supp. 821, 833 (S.D.
Ohio 1996) (CWA citizen suit plaintiffs “must provide notice of the specific limitations,
standards or orders alleged to be violated.”); Washington Trout v. McCain Foods, Inc., 45 F.3d
1351, 1354 (9th Cir. 1995) (interpreting Hallstrom to require strict compliance with all aspects of
the notice requirement and thus holding a notice letter was deficient where it failed to include the
identities, addresses, and phone numbers of the plaintiffs). However, even where courts broadly
construe the notice requirements, the notice still must include “sufficient information to permit
the recipient to identify” the components of the alleged violation. Hercules, 50 F.3d at 1247-48.
Failing to provide the required specificity under the CWA citizen suit notice provision frustrates
53
the purpose of the notice requirement, which is to provide an alleged violator an opportunity to
fix any problems. See Atwell v. KW Plastics Recycling Div., 173 F. Supp. 2d 1213, 1222 (M.D.
Ala. 2001).
PPG argues that Plaintiffs failed to provide notice for the July 2010 and November 2010
discharge violations contained in Exhibit 2 of the CWA Complaint. (CWA Compl. Ex. 2.) In
Attachment 4 of the Notice of Intent to Sue, Plaintiffs do not list any discharge violations for
July 2010 and November 2010. (Id. Ex. 1, Attach. 4.) PPG argues that Plaintiffs failed to
comply with the plain language of the notice requirements in 40 C.F.R. § 135.3(a) for the July
2010 and November 2010 discharge violations because they did not include the dates of these
violations in their Notice. PPG argues that the Court should dismiss the July 2010 and
November 2010 discharge violations.
PPG acknowledges that the Third Circuit has not always required strict compliance with
the CWA notice requirements. However, this case is distinguishable from Hercules because the
Third Circuit found that the plaintiff’s notice that included discharge violations did not prevent
subsequently discovered monitoring, reporting or recordkeeping violations “directly related” to
the noticed discharge violations. 50 F.3d at 1248. Additionally, the Third Circuit still required
that the “citizen provide enough information to enable the recipient, . . ., to identify the specific
effluent discharge limitation which has been violated, including the parameter violated, the date
of the violation, the outfall at which it occurred, and the person or persons involved.” Id. By
failing to include the July 2010 and November 2010 dates in Attachment 4 to their Notice letter,
Plaintiffs did not provide sufficient information for PPG to identify “the date of the violation”
PPG has submitted numerous monthly Effluent Monitoring Data reports to PADEP, which
contain the basis for Plaintiffs’ alleged discharge violations. See CWA Compl. ¶ 76. Without
54
providing at least the month in which the discharge violations occurred, PPG would have to
comb through these reports to determine Plaintiffs’ alleged discharge violations. PPG argues
that a failure to provide this type of required information in the notice letter requires the
improperly noticed allegations to be dismissed. See e.g., Severstal, 794 F. Supp. 2d at 621-22
(dismissing all of Chesapeake Bay Foundation’s CWA claims because they did not list which of
the 22 outfalls at which the alleged discharge violations occurred). As such, by not at least
providing the month for the date of the July and November 2010 discharge violations, Plaintiffs
have failed to provide sufficient notice for the date of these alleged violations.
Plaintiffs respond that PPG was given adequate notice “to permit the recipient to
identify” the relevant violations, 40 C.F.R. § 135.3(a). They note that, excluding the transmittal
letter, each of the Effluent Monitoring Data reports submitted by PPG is one page in length. See
ECF No. 43 Ex. 12. Plaintiffs note that, if PPG had used the other information made available in
the notice letter -- the specific standard, the activity alleged to constitute a violation, the person
responsible for the alleged violation, and the location of the alleged violation -- PPG would have
had to “comb” through a total of 11 sheets of paper to review all of its Effluent Monitoring Data
reports from February through December 2010. Moreover, if PPG had reviewed every Effluent
Monitoring Data Report from February 2010 through December 2011, PPG would have had to
review just 23 sheets of paper. Plaintiffs state that they correctly identified the outfall, the
parameter at issue as Total Suspended Solids (TSS), and the exact value of the discharges
constituting violations. Moreover, since the discharges were acknowledged as violations in the
reports themselves, PPG would have had no problem identifying them. See Ex. 12 at 12, 20.
Plaintiffs therefore contend that PPG had more than adequate information to identify the July and
November 2010 violations based on Plaintiffs’ January 13, 2012, notice letter.
55
The Court concludes that PPG relies upon another hyper technical argument. The list of
discharge violations sent to PPG with Plaintiffs’ Notice of Intent to Sue is essentially identical to
the list included with the complaint, except that the first two violations are noted as occurring in
“August” instead of “July” 2010 and the last four say “December” instead of “November.” In
essence, PPG is citing a typographical error. The omissions of the July and November 2010
violations cannot be compared to the situation in Severstal, when the plaintiffs simply named a
facility, which had 22 outfalls, and provided no further information about the discharges. PPG
has not shown that, assuming it did not know that a mistake was made in the Notice of Intent to
Sue, it would have been unduly burdened by having to “comb through” 11 or even 23 sheets of
paper to find the correct information. This argument is rejected.
Whether Violations Are Ongoing
PPG moves to dismiss Counts IX and X on the grounds that they allege only past, and not
ongoing, violations of the CWA. Plaintiffs respond that they have alleged ongoing violations.
The Supreme Court has held that CWA citizen suits may be brought only to abate
ongoing, as opposed to wholly past, violations. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49 (1987) (“Gwaltney I”). “Consistent with this requirement, the
Court held that jurisdiction will not lie where a plaintiff alleges claims for ‘wholly past’
violations.” Natural Resources Defense Council v. Texaco Ref. & Mktg., Inc., 2 F.3d 493, 497
(3d Cir. 1993) (“NRDC”)(citing Gwaltney I, 484 U.S. at 57-58); see also Chesapeake Bay
Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170 (4th Cir. 1988) (“Gwaltney II”).
As stated by the Supreme Court, in order for a court to have jurisdiction, citizen-plaintiffs must
“allege a state of either continuous or intermittent violation – that is, a reasonable likelihood that
a past polluter will continue to pollute in the future.” Gwaltney I, 484 U.S. at 57. In order to
56
satisfy federal subject matter jurisdiction, a plaintiff’s allegations of continuing violation must be
made in “good faith.” Id. at 64. In Gwaltney II, the Fourth Circuit elaborated on what a plaintiff
must show to demonstrate a continuing violation:
Citizen-plaintiffs may accomplish this [proof of an ongoing violation] either (1)
by proving violations continue on or after the date the complaint is filed, or (2) by
adducing evidence from which a reasonable trier of fact could find a continuing
likelihood of recurrence in intermittent or sporadic violations. Intermittent or
sporadic violations do not cease to be ongoing until the date when there is no real
likelihood of repetition.
844 F.2d at 171-72. The Court of Appeals for the Third Circuit has adopted the Fourth Circuit’s
standard in Gwaltney II. See NRDC, 2 F.3d at 501.
Plaintiffs must make good faith allegations of ongoing violations as to each parameter
separately. See Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 696 (4th
Cir. 1989) (expressly rejecting the idea that the permit should be viewed as a whole in
determining whether violations are ongoing for purposes of jurisdiction); see also NRDC, 2 F.3d
at 500-01. Moreover, a single isolated exceedance of a parameter is insufficient to establish an
“ongoing violation.” See Allen County Citizens for the Env’t, Inc. v. BP Oil Co., 762 F. Supp.
733, 741 (N.D. Ohio 1991). PPG argues that, similarly, courts can only exercise jurisdiction
over CSL claims if they are “ongoing.” See, e.g., L.E.A.D. Group of Berks v. Exide Corp., 1999
WL 124473, at *1 (E.D. Pa. Feb. 19, 1999) (dismissing certain discharge violations under both
the CWA and CSL because they were not ongoing).
PPG argues that Plaintiffs have not sufficiently pled that the violations in Counts IX and
X are ongoing, continuous, or intermittent. PPG contends that Plaintiffs merely recite standard
boilerplate in their CWA Complaint in an attempt to invoke this Court’s jurisdiction over the
alleged discharge violations. PPG contends that “[a] closer examination of the factual
allegations in the CWA Complaint shows that that they have only pled wholly past violations for
57
CWA Claims IX and X, and therefore, these claims must be dismissed.” (ECF No. 25 at 42.)
First, PPG notes that Plaintiffs state that Counts IX and X are based on exceedances of
limits in the approved Interim Abatement Plan pursuant to the 2009 Administrative Order for
TSS for the period from February 2010 to December 2011. (CWA Compl. ¶¶ 76, 79 & Ex. 2.)
PPG argues that Plaintiffs have alleged only an isolated number of incidents that resulted in
alleged TSS violations from August 2010 to October 2010 in Exhibit 2 of the CWA Complaint.
See CWA Compl. Ex. 2. Moreover, Plaintiffs have only alleged violations that occurred almost
two years prior to the filing of the CWA Complaint. Thus, PPG argues that Plaintiffs have only
alleged wholly past violations for which there is no jurisdiction before this Court.
PPG further argues that, even assuming that Plaintiffs had alleged discharge violations
that occurred closer in time to the filing of the CWA Complaint, Plaintiffs have only alleged
sporadic and discrete violations and not ongoing violations. See Allen County, 762 F. Supp. at
741 (finding that a small number of discrete effluent exceedances (such as for dissolved oxygen
and cyanide) occurring only over a few months prior to the filing of complaint did not constitute
an ongoing violation). PPG argues that Plaintiffs have attempted to conflate the number of
violations by listing violations of the average monthly limit for TSS as a violation for each day
of the month. See CWA Compl. Ex. 2. While this may be proper to determine statutory
maximum penalty amounts, Plaintiffs have in fact only alleged violations based on four isolated
incidents that caused exceedances on the instantaneous maximum limit in the months of August
2010 to October 2010, which in turn caused an exceedance of the monthly average limit based
on those isolated incidents. For example, in August 2010, there was only one day where the TSS
limit exceeded the instantaneous maximum limit in the 2009 Administrative Order. See CWA
Compl. Ex. 2. This single exceedance based on one isolated event, also caused the average
58
monthly limit to be exceeded for TSS. Id. However, PPG argues that, in determining whether
there is an ongoing violation for jurisdictional purposes, it would be entirely inappropriate to
view the exceedance of an average monthly limit as 31 separate violations when the exceedance
was based on one isolated incident in that month. It claims that the court in Adams v. Teck
Cominco Alaska, Inc., 2006 WL 2105501, at *7-8 (D. Alaska July 28, 2006), found that a
violation of one daily exceedance of a Total Dissolved Solids (TDS) limit in a month that also
exceeded the monthly average limit did not demonstrate that there was an ongoing violation of
the monthly average limit. Likewise, there were only two isolated incidents that led to
exceedances of the instantaneous maximum and average monthly in September 2010 and one
isolated incident that led to exceedances of the instantaneous maximum and average monthly in
October 2010. See CWA Compl. Ex. 2. Accordingly, instead of the 100+ violations that
Plaintiffs have attempted to plead in order to show ongoing violations, PPG argues that Plaintiffs
have in fact only alleged several discrete violations of both the instantaneous daily and average
monthly limits contained in the 2009 Administrative Order that occurred almost two years prior
to the filing of the CWA Complaint. As such, Plaintiffs have failed to properly plead an ongoing
violation for CWA citizen suit jurisdictional purposes.
Plaintiffs respond that at the motion to dismiss stage, the proof of an ongoing violation is
premature. See Gwaltney I, 484 U.S. at 65-66 (plaintiff not required to offer proof “as a
threshold matter to invoke the District Court’s jurisdiction”). The only issue at this stage is
whether they have made a good-faith allegation of ongoing violation. Gwaltney II, 844 F.2d at
171. Plaintiffs argue that the Supreme Court determined that in order to protect defendants
against frivolous cases, citizens must make good-faith allegations which need only satisfy the
pleading requirements of Rule 11 of the Federal Rules of Civil Procedure:
59
Next, the [Supreme] Court established that it is the defendant’s responsibility to
challenge the truthfulness of the allegations of ongoing violations. If the
defendant wishes to argue that the allegations are untrue, and the citizen lacks
standing to bring the suit, the defendant must move for summary judgment and
demonstrate that “the allegations were sham and raised no genuine issue of fact.”
[Gwaltney,] 108 S.Ct. at 386 (quoting United States v. SCRAP, 412 U.S. 669, 689
(1973)). If the defendant fails to convince the court that there are no genuine
issues of fact after the plaintiff offers evidence to support the allegations of
ongoing noncompliance, the case goes to trial on the merits. Id.
Sierra Club v. Union Oil Co. of California, 853 F.2d 667, 669 (9th Cir. 1988). In that case, the
Ninth Circuit agreed with the district court that the Sierra Club’s complaint alleged ongoing
violations. The court relied upon the following language from the district court’s decision:
[P]laintiff alleges not only past violations by defendants, but continuing violations
as well. The complaint alleges an ongoing pattern of frequent and substantial noncompliance with the Act on the part of defendants. In fact, the complaint
explicitly states that the “interests of the Sierra Club members have been, are
being, and unless the relief prayed herein is granted, will be, adversely affected by
the failure of defendants to comply with their permit.” The complaint also alleges
“that, without the imposition of appropriate civil penalties and issuance of an
injunction, defendants will continue to violate their NPDES permit to the further
irreparable injury of plaintiff and the public.”
Id. at 670.
Plaintiffs argue that the allegations of ongoing violation in this case are similar, if not
stronger, than those upheld in Union Oil. Plaintiffs here have alleged 162 discharge violations
and have further alleged, on the basis of those violations, that “these discharge violations are
likely to recur on a continuous or intermittent basis either because there is a likelihood of
recurring violations of the same parameters or that the source of those violations will cause
recurring violations of one or more different parameters.” (CWA Compl. ¶ 76.) In addition,
they alleged that PPG’s discharge of pollutants in violation of the CWA, the CSL, and the 2009
Administrative Order “has adversely affected, is adversely affecting, and will continue adversely
to affect the health, economic, recreational, aesthetic, and environmental interests of
60
PennEnvironment and the Sierra Club’s members.” (CWA Compl.¶ 9.) Plaintiffs further asked
the Court to issue declaratory relief that “PPG has violated and continues to violate” the CWA,
the CSL, the 2009 Administrative Order and the July 2 Addendum. (CWA Compl. at 22-23
¶¶ A, B.)
Unless a plaintiff fails to allege “a state of either continuous or intermittent violation,”
Gwaltney I, 484 U.S. at 57, or the defendant files a summary judgment motion demonstrating
that the allegations of ongoing or continuing violation are “a sham and raise no genuine issue of
fact,” Union Oil, 853 F.2d at 669, the plaintiff has the opportunity to prove the allegation through
a motion for summary judgment or at trial. Plaintiffs argue that they have alleged ongoing
violations that “are likely to recur on a continuous or intermittent basis,” and that nothing more is
needed in response to a motion to dismiss.
Plaintiffs disagree that the violations are “isolated” incidents and that “isolated”
incidents are not ongoing violations, particularly when they are intermittent. Nevertheless,
Plaintiffs assert that whether the alleged violations are sufficient “to establish an ‘ongoing
violation’” is a matter of proof and Plaintiffs argue that they are not required to present proof in
opposition to a motion to dismiss.
Plaintiffs note that PPG offers no support for its argument that they must establish an
ongoing violation in their complaint. PPG cites two cases for the proposition that a small
number of “discrete” violations do not constitute an ongoing violation. But Plaintiffs note that
Allen County was decided on the defendants’ motion for summary judgment, not on a motion to
dismiss. Furthermore, the violation that the court found to be an isolated occurrence was a single
pre-complaint violation followed by a “41 month span of time in which not a single exceedance
of the permit limit for ammonia was reported.” 762 F. Supp. 2d at 744. That is not the situation
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here, but, even if it were, the appropriate vehicle for such determination is a motion for summary
judgment or trial where the evidence can be examined. Likewise, Adams involved a motion for
summary judgment, not a motion to dismiss. 2006 WL 2105501, at *1. Moreover, Plaintiffs
contend that Adams did not hold, as PPG argues, that the violation of a maximum limitation that
also causes the violation of a monthly average limitation cannot demonstrate an ongoing
violation. Rather, in that case, the plaintiffs alleged in their 2004 complaint violations of the
maximum and average TDS limitation. Id. at *2, 5, 7. In 2003, before the complaint was filed,
the defendant’s permit was modified and no longer included a monthly average limitation. Id. at
*7. In support of their claim that the average violations were nonetheless ongoing at the time of
the complaint, the plaintiffs argued that the defendant’s continued violation of its maximum
limitation somehow showed that it was in ongoing violation of both limitations because the
permit change was “intended to serve as both the daily maximum limit and the monthly average
limit.” Id. at *7-*8. The court declined to interpret the permit in that fashion because, where EPA
intended to impose an average limit, it used the words “‘monthly average’ limit” and it had not
done so. Id. at *8. There was no post-complaint violation of a monthly average limitation since
no such limit existed; thus the pre-complaint monthly average violations were wholly past.
As the Fourth Circuit explained in Gwaltney II, whether intermittent or sporadic
violations are ongoing or wholly past requires evidence, including evidence as to whether “the
risk of defendant’s continued violation had been completely eradicated when citizen-plaintiffs
filed suit.” 844 F.2d at 171-72. Plaintiffs argue that such an examination of the evidence must
be made through a summary judgment motion or at trial, not in a motion to dismiss. At the
appropriate time, the existence of post-complaint violations is one of the ways that a plaintiff can
establish an ongoing violation at the time of suit. Id. at 171.
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Plaintiffs indicate that they intend to show that unlawful pre-complaint discharges that
affect the sediments continue or are ongoing until the sediments are remediated. Courts have
found that violations of the CWA are ongoing against the polluter where the pollutants
discharged without a permit or in violation of a permit remain in the waterway. See, e.g., Raritan
Baykeeper v. NL Industries, Inc., 2013 WL 103880, at *20 (D.N.J. Jan. 8, 2013) (“Baykeeper
II”) (“if NL discharged these pollutants into the river without a permit, it is still in violation of
the CWA because remedial measures have not been taken that clearly eliminate the cause of the
violation”); Sasser v. EPA, 990 F.2d 127, 128-129 (4th Cir. 1993)(where complaint alleged
violation of CWA by discharge of a pollutant from a point source without a permit, “[e]ach day
the pollutant remains in the wetlands without a permit constitutes an additional day of
violation”). In United States v. Alcoa, Inc., 98 F. Supp. 2d 1031, 1037 (N.D. Ind. 2000), the
government, seeking to have illegally discharged pollutants removed from the sediments, argued
that the discharged pollutants “settle into the sediment and from there, continue to be released
into the water,” constituting a “continuing violation” of the CWA. It analogized the discharge
case to fill cases, since in both situations, the harm resulted from the pollutant remaining in the
sediment. The court agreed, finding that “the court’s authority to grant an injunction ‘to require
compliance’ in Section 309(b) [of the CWA, 33 U.S.C. 1319(b)] is broad enough to include the
mandated clean up of contaminated sediments where the sediments are contaminated as a direct
result of NPDES Permit violations.” Id. at 1038.
The Court concludes that Plaintiffs have properly alleged ongoing violations. PPG’s
argument delves into the merits of the case and would be appropriate at the summary judgment
stage of this case, but is premature in the context of a motion to dismiss. Therefore, with respect
to Counts IX and X, the motion to dismiss is denied.
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Whether Reporting Violations Are Ongoing
PPG moves to dismiss the reporting violations in Counts XI and XII on the grounds that
they are for past activity and are not ongoing. Plaintiffs respond that they have alleged ongoing
reporting violations.
Similar to discharge violations under the CWA, reporting violations must also be ongoing
in order for a court to have jurisdiction over such claims. A plaintiff can only demonstrate an
ongoing violation either: (1) by proving violations continue on or after the date the complaint is
filed; or (2) by adducing evidence from which a reasonable trier of fact could find a continuing
likelihood of recurrence in intermittent or sporadic violations. Gwaltney II, 844 F.2d at 171-72.
PPG contends that Plaintiffs cannot show that the alleged reporting violations in Counts XI and
XII are ongoing because: (1) PPG has not committed a reporting violation since the filing of the
CWA Complaint; and (2) there is no likelihood of recurrence of PPG committing a reporting
violation. First, PPG has timely submitted reports under the 2009 Administrative Order since
January 2012 to the extent that there may have been previous isolated incidences of late
submittals. See PPG Ex. 33. Second, Plaintiffs cannot meet their burden of showing that there is
a likelihood of recurrence for this reporting obligation because PPG has taken affirmative steps
to ensure that this reporting violation will not recur. The reporting violations in question consist
of isolated instances where reports required under the 2009 Administrative Order were a day or
so late. Because the required data and reports have been prepared by PPG’s consultant, there
were a few instances where submission was delayed pending review and approval from several
individuals. Prior to the filing of the CWA Complaint, PPG issued instructions mandating the
expeditious review, approval, and submission of these reports and has eliminated this deficiency.
There simply have been no instances of untimely reporting since that time. Accordingly,
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because the alleged reporting violations in Counts XI and XII are wholly past violations, they
must be dismissed.
Plaintiffs respond that PPG misunderstands what is required under Gwaltney at the
pleading stage. At the pleading stage, Plaintiffs are not required to present their proof. The
presentation of proof is required in response to a motion for summary judgment or at trial. In
addition, PPG has based its argument on matters outside of the complaint – its alleged
“affirmative steps to ensure that this reporting violation will not recur” -- which is not
appropriate for a motion to dismiss.
Again, PPG’s argument must be rejected as beyond the scope of a motion to dismiss. It
relies on matters outside the complaint and documents to which the Court can properly refer to
delve into the merits of the case. Plaintiffs have properly pled ongoing reporting violations.
Therefore, with respect to Counts XI and XII, the motion to dismiss is denied.
RCRA Imminent and Substantial Endangerment Claim
In the RCRA Complaint, Plaintiffs refer to the site at issue as the “PPG Waste Site.”
(RCRA Compl. ¶ 19.) In the background to their RCRA claim, Plaintiffs define the “PPG Waste
Site” to consist of the slurry lagoons, the solid waste disposal area, the plumbing fixture landfill
and four baseball fields. PPG argues that Plaintiffs have inappropriately included the plumbing
fixture landfill (Eljer landfill) and baseball fields in the definition of the “PPG Waste Site”
because they fail to make a single allegation with respect to these areas in their RCRA
Complaint.
Plaintiffs’ RCRA Complaint only asserts one claim for relief; an imminent and
substantial endangerment claim under RCRA, 42 U.S.C. § 6972(a)(1)(B). A fundamental
allegation in order to support a claim for relief under RCRA’s imminent and substantial
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endangerment provision is that the claim may only be brought against a person “who has
contributed or who is contributing to the past or present handling, storage, treatment,
transportation, or disposal of any solid or hazardous waste” at a particular location. 42 U.S.C.
§ 6972(a)(1)(B). PPG argues that Plaintiffs have not alleged that it handled, stored, treated,
transported or disposed of solid waste or hazardous waste at the plumbing fixture landfill (Eljer
landfill) or ballfields anywhere in their RCRA Complaint and therefore have failed to state a
RCRA imminent and substantial endangerment claim with respect to these areas. PPG notes that
Plaintiffs even admit that PPG had no involvement with respect to any waste activities at the
Eljer landfill. See RCRA Compl. ¶18 (stating that the plumbing fixture landfill “was used and
occupied by Eljer, Inc.”). PPG contends that Eljer Industries has taken full responsibility for this
landfill area and completed closure activities for this area that were approved by PADEP. See
PPG Ex. 34. Further, it argues that there is no evidence that PPG ever conducted any landfilling
or other waste disposal in the area that became ballfields. (PPG Ex. 3, at 1-5 to 1-6.)
PPG argues that Plaintiffs have attempted to include the Eljer landfill and ballfields in
their RCRA Complaint by broadly defining the Site to include these areas but have not provided
any factual allegations to support this definition. These “‘[n]aked assertions’ devoid of ‘further
factual enhancement’” by Plaintiffs are insufficient to state a claim with respect to the Eljer
landfill and ballfields for a RCRA imminent and substantial endangerment claim. See Iqbal, 556
U.S. at 678. PPG argues that this Court must dismiss Plaintiffs’ RCRA Complaint to the extent
it includes the Eljer landfill and ballfield areas.
Plaintiffs respond that they have stated a RCRA imminent and substantial endangerment
claim with respect to the ballfield and the plumbing fixture landfill areas. Plaintiffs’ RCRA
Claim extends to the full property, which they have labeled the “PPG Waste Site” in the RCRA
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Complaint. (RCRA Compl. ¶¶ 1,19, 34.) Plaintiffs have alleged that the full property “may
present an imminent and substantial endangerment to human health and the environment” that
must be remediated. Again, PPG asserts the hyper technical argument that the RCRA Complaint
does not explicitly refer to the Eljer landfill and ballfield areas, but by alleging that they
constitute part of the Site, Plaintiffs have alleged that these areas were affected.
Plaintiffs argue that the RCRA Complaint properly includes the full extent of the
property in the RCRA Claim because PADEP found that the contaminants in the PPG waste
material are spreading or migrating from the areas in which they were originally deposited.
(PPG Ex. 2 ¶¶ 13-15, 21, 23-24, 26, 29.) Moreover, the original handling of the waste and its
disposal at the site is unlikely to have been so precise as to be confined only to the slurry lagoon
and solid waste disposal areas, and not to have affected adjoining areas, particularly since the
original waste deposits occurred well before the enactment of today’s rigorous laws regarding
the handling of hazardous and solid waste.
Plaintiffs assert that they properly included the full property in their RCRA Claim.
However, they note that, in the event that no conditions that “may present an imminent and
substantial endangerment to human health or the environment” exist in either the ballfield or
plumbing fixture landfill area (or any other part of the property), PPG will not have to conduct
any remediation in those areas. On the other hand, if the conditions that “may present an
imminent and substantial endangerment to human health or the environment” extend from the
slurry lagoon and/or solid waste disposal areas into the ballfield and/or plumbing fixture landfill
areas, PPG must be required to remediate these areas. However, this issue may not be determined
on the basis of a motion to dismiss.
Plaintiffs note that the statement in paragraph 18 of the RCRA Complaint that the
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plumbing fixture landfill “was used and occupied by Eljer, Inc.” is not an admission that PPG
had no involvement. It is merely a statement that Eljer, Inc. also had involvement.
PPG cites PPG Exhibits 3 and 34 as support for its claim that there is no evidence that
PPG has any responsibility for disposing of waste in these two areas. However, Plaintiffs argue
that these two exhibits represent matters outside of the pleadings and may not be considered by
the Court in the context of PPG’s motion to dismiss. Accordingly, neither exhibit presents a
basis for limitation of Plaintiffs’ RCRA Claim at this time.
The Court agrees. The RCRA Complaint defines the Site as including the plumbing
fixture and the ballfields and alleges PPG’s involvement, even if Eljer also had involvement.
PPG’s attempt to contradict the allegations of the complaint by citing materials outside the
complaint is premature and cannot form a basis to dismiss the RCRA Complaint at this time.
Therefore, PPG’s motion to dismiss the RCRA Complaint is denied.
Status of Ford City
Ford City moves for dismissal of the RCRA Complaint on the ground that it states no
cause of action against it. Plaintiffs respond that it is an indispensable party.
Federal Rule of Civil Procedure 19(a) states that a party must be joined in an action if:
that person claims an interest relating to the subject of the action and is so situated
that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the
interest; or
(ii) leave an existing party subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest.
Fed.R.Civ.P. 19(a)(1)(B). Plaintiffs note that both complaints make clear that Ford City is joined
as an indispensable party based on its status as owner of the Site, even though no relief is sought
from it. (CWA Compl. ¶ 13 & at 23-24; RCRA Compl. ¶ 15 & at 11.) PPG sold the property to
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Ford City for one dollar in 1972 (CWA Compl. ¶ 21; RCRA Compl. ¶ 23; PPG Ex. 5) and thus,
Plaintiffs argue, any decision in this case will affect Ford City’s interest in the property.
Ford City’s argument is rejected. Although Plaintiffs have not stated any claims against
it, any decision in this case will affect its interest in the Site as property owner and thus it is
properly joined as an indispensable party under Rule 19. See Steel Valley Auth. v. Union Switch
and Signal Div., 809 F.2d 1006, 1013-14 (3d Cir. 1987) (a property owner is a party to be joined
if injunctive relief would interfere with its rights); Baykeeper II, 2013 WL 103880, at *21
(same). Therefore, Ford City’s motion to dismiss the RCRA Complaint is denied.
In summary, Plaintiffs have standing to proceed with this citizen suit and PPG has not
demonstrated that the Court should abstain based on the doctrine of primary jurisdiction. PPG’s
other arguments for dismissal are unavailing and Ford City should remain in the case as an
indispensable party. An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PENNENVIRONMENT and SIERRA CLUB,
Plaintiffs,
)
)
)
)
)
)
)
)
vs.
PPG INDUSTRIES, INC. and BOROUGH OF
FORD CITY,
Defendants.
Civil Action No. 12-342
ORDER
AND NOW, this 8th day of August, 2013, for the reasons provided in the Memorandum
Opinion,
IT IS HEREBY ORDERED that the motion to dismiss filed by Defendant PPG
Industries, Inc. (ECF No. 24) is denied.
IT IS FURTHER ORDERED that the motion to dismiss filed by Defendant Borough of
Ford City (ECF No. 29) is denied.
s/Robert C. Mitchell___________________
ROBERT C. MITCHELL
United States Magistrate Judge
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