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September 28, 2000


The opinion of the court was delivered by: Cindrich, District Judge.


I. Background

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 Authority.

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 Defendant

The parties have filed a stipulation in which the U.S. has withdrawn some of its claims and A-L has admitted liability to certain claims.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 Violations

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 Liability-Unreported Violations

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