The opinion of the court was delivered by: Cindrich, District Judge.
This is an action by the United States to remedy thousands of
alleged violations of the Clean Water Act, 33 U.S.C. § 1251 et
seq. Defendant Allegheny Ludlum Corporation ("A-L") owns and
operates five steel mills and finishing plants. A-L's
Brackenridge and West Leechburg plants were authorized to
discharge wastewater directly to local rivers, the Allegheny and
the Kiskiminetas. The Vandergrift plant discharged its wastewater
to the Kiski Valley Water Pollution Control Authority
("Authority"), which operates a publicly owned wastewater
treatment plant, until February 1998. This relationship included
an agreement that, like the highly detailed statutory and
regulatory scheme discussed by the parties in their papers, also
established obligations for the wastewater A-L sent to the
Among a number of pending motions are three for partial summary
judgment on liability by the US, and one motion for summary
judgment on liability by A-L. We also take this opportunity,
given the circumstances of this case and the state of the court's
docket, to summarily resolve other matters and place the case on
track for ultimate resolution.
The Clean Water Act ("Act") prohibits the discharge of any
pollutants into the waters of the United States except as
expressly authorized under the Act. 33 U.S.C. § 1311(a). The Act
includes the National Pollution Discharge Elimination System to
regulate pollution. The NPDES authorizes the United States
Environmental Protection Agency to issue permits that set the
standards for emissions of pollutants. 33 U.S.C. § 1342(a).
States may participate in pollution regulation under the Act.
33 U.S.C. § 1342(b). See generally, PIRG v. Hercules, Inc.,
50 F.3d 1239, 1242 (3d Cir. 1995); PIRG of NJ v. Powell Duffryn
Terminals, Inc., 913 F.2d 64, 68 (3d Cir. 1990).
Violations of the Act are determined according to a standard of
strict liability. The U.S. must show that defendant is a person
who discharged a pollutant into navigable waters outside the
terms of its permit. 33 U.S.C. § 1311. Violations can take the
form not only of actual pollution, but in improperly monitoring
and reporting the discharge of pollutants.
II. Stipulation of Withdrawal by Plaintiff and Liability by
The parties have filed a stipulation in which the U.S. has
withdrawn some of its claims and A-L has admitted liability to
certain claims. Doc. No. 215. These admissions and withdrawals
will be applied in the future course of the litigation.
III. US First Motion for Partial Summary Judgment — Reported
The U.S. seeks summary judgment for violations that A-L
reported through its mandatory monitoring of pollutants, and
recorded on what are known as discharge monitoring reports.
Liability can be found by comparing A-L's reports about its
discharges of toxic metals, oil, acid, and caustic wastewater
with the levels allowed by its permits and agreements. The U.S.
contends that these reports, containing measurement data required
by the Act, constitute admissions of liability.
In response, A-L has admitted liability for certain claims, as
noted above. Further examination of those claims thus can await
the penalty stage of the case.
A-L then advances a number of defenses which it argues preclude
summary judgment. First, A-L contends that the "upset" defense is
applicable to a number of the violations alleged by the US. An
upset is defined as unintentional, temporary failure to comply
with a permit because of conditions beyond the permit holder's
control. 40 C.F.R. § 122.41(n)(1). The U.S. responds that this
defense is unavailable as a matter of law because language
authorizing it was not part of A-L's permits. The court agrees.
The Act allows a state to issue stricter pollution standards than
those promulgated by the US. 33 U.S.C. § 1370;
40 C.F.R. § 123.25. These standards then become enforceable by the US. A-L's
invocation of the upset defense thus is no shield to the
violations it cites.
A-L's argument based on the "bypass" defense is similarly
flawed. A bypass condition is also a legitimate excuse for
noncompliance, and occurs when there is an intentional diversion
of pollutants to prevent death, injury, or severe property
damage. 40 C.F.R. § 122.41(m). A-L's agreement with the Authority
did not include a provision on bypasses. Thus, A-L cannot claim
the bypass defense on its discharges from Vandergrift to the
Authority's wastewater treatment plant. As for the other claims
against which A-L asserts the bypass defense, there are questions
of fact about feasible alternatives which preclude summary
judgment. Accordingly, those claims will be reserved for trial.
As another defense, A-L contends that violations based on its
exceedances of zinc should be excused because improper handling
of samples in its own laboratory led to reports of higher zinc
discharges than allowed. A-L has not demonstrated, however, that
this is a defense to liability accepted in this circuit. Given
the Act's scheme of strict liability, and the importance placed
on self-monitoring and self-reporting, we are unlikely to adopt a
new defense in this litigation, especially since the Act can be
interpreted as creating an obligation to insure that the
self-monitoring of pollutants is accurate, assigning the risk of
inaccuracy to the company.
There are a number of U.S. claims, involving oil sheens,
discoloration, foam, and pH levels not easily characterized, that
A-L challenges as being unsuited for summary judgment. A-L
contends that it did not cause certain discharges, that some
discharges did not reach navigable waters, that some
discoloration was not harmful, and that its discharges were on a
par with the influent water as to certain characteristics ("no
net add" defense). Defendant's Response in Opposition to U.S.
Motions, Doc. No. 136, at 36-44. Fact disputes exist as to these
claims, and they will be reserved for trial.
A-L also argues that certain claims are barred by agreements
between it and the Authority and the PADEP. A-L asserts that res
judicata principles foreclose action by the U.S. over the same
problems. The court disagrees. The U.S. has independent authority
under the Act to pursue its own enforcement actions regardless of
the contracts with, or enforcement by, state and local officials.
33 U.S.C. § 1342. We therefore find that the terms of, and
conduct pursuant to, agreements between A-L, the Authority, and
PADEP are not defenses to liability as argued by A-L.
IV. US Second Motion for Partial Summary Judgment on