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February 7, 2001


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


Before the court are cross-motions for summary judgment. Defendant seeks summary judgment on all counts while Plaintiffs seek summary judgment on the issue of liability on Counts I, II, III, and IV of their complaint. The parties have briefed the issues, and the motions are ripe for disposition.

I. Background

A. Defendant P.H. Glatfelter Company & Codorus Creek

The following facts are undisputed except where noted. Defendant, P.H. Glatfelter Company ("Glatfelter" or "Defendant"), owns and operates a pulp and paper mill in Spring Grove, York County, Pennsylvania (the "Mill"). The Mill is situated along the Codorus Creek which flows into the Susquehanna River approximately 15 miles downstream from the Mill. Defendant manufactures paper using a bleached kraft process in order to remove the brown color from the wood fiber contained in the paper.

Defendant discharges approximately 14 million gallons of wastewater into the west branch of Codorus Creek daily. The bleaching agents used by Defendant cause a chemical reaction that moves the color molecules from the paper into the wastewater. Plaintiffs contend that there is a discoloration of the Codorus beginning at the mill that is visible all the way downstream through the City of York, located approximately ten miles from the Mill. Plaintiffs claim that this discoloration results from the wastewater discharged by Defendant. (Pl. Statement Undisputed Facts, hereinafter "Pl. Facts," at ¶¶ 3, 6, 7.) Defendant disputes that any discoloration of the Codorus is caused by the color of the wastewater, that the discoloration begins at the Mill, and that Plaintiffs have established what the "true" color of the stream is. (Def.Resp. to Pl. Facts, hereinafter "Def.Resp. Facts", at ¶¶ 3, 6, 7.)

The color of water is measured in Platinum Cobalt Units ("PCUs"). The Pennsylvania Department of Environmental Protection ("DEP")*fn1 has established a water quality standard for the Codorus downstream from the Mill whereby the color is not to exceed 50 PCUs.*fn2 25 Pa.Code §§ 93.7 & 93.9, Drainage List O. On a daily basis, Defendant measures the color of its wastewater at a discharge pipe referred to as "Outfall 001." Defendant also takes daily measurements of the color of the Codorus approximately 1.25 miles downstream from the Mill. The results of these measurements are recorded on Discharge Monitoring Reports ("DMRs") and submitted to DEP.

B. Regulation of Defendant's Wastewater

In 1965 the Pennsylvania Sanitation and Water Board issued a permit to Defendant authorizing the discharge of industrial waste into the Codorus. This permit imposed no limits on the color of Defendant's wastewater. In 1968 the permit was modified to require, among other things, a limit of 125 PCUs in the stream by June 30, 1975 and 50 PCUs by June 30, 1977 ("1968 Modification"). Defendant appealed the 1968 Modification, and a consent agreement was reached on September 21, 1973 ("1973 Agreement"). The 1973 Agreement required that Glatfelter meet the 1975 and 1977 in-stream PCU limits set by the 1968 Modification (125 PCUs and 50 PCUs, respectively). However, the 1973 Agreement also contained a provision whereby Defendant could petition DEP for an extension on each of these limits if meeting them proved to be technologically impossible. In 1975, 1977, 1979, and 1981 DEP granted Defendant successive two year extensions to achieve the color limits contained in the 1973 Agreement.

Defendant sought further short-term extensions in achieving these color limits on June 30, 1983, November 3, 1983, and February 8, 1984. DEP granted these extensions, the last of which stated that it would continue until "April 30, 1984 or until a final NPDES Permit is issued to P.H. Glatfelter, whichever occurs sooner." (Hirsch Aff., Ex. E.) On April 30, 1984, DEP had still not issued a final permit to Defendant. However, on May 22, 1984, DEP issued Defendant a final NPDES Permit ("1984 Permit").

The 1984 Permit set the following end-of-pipe color limits to be measured from Outfall 001: an average monthly limit of 100 PCUs, an average daily limit of 200 PCUs, and an instantaneous maximum limit of 250 PCUs. (Hirsch Aff., Ex. A at 2.)*fn3 The purpose of these limits was to ensure that once the wastewater was diluted, the Codorus would meet the in-stream water quality standard of 50 PCUs. The 1984 Permit also contained the following language: "Interim effluent limits shall be in accordance with the Consent Agreement approved on September 21, 1973 and subsequent amendments." (Missimer Aff. Ex. B at Part C.5.) DEP provided public notice of the 1984 Permit issuance and solicited public participation, but no public comments or third party appeals were filed.

Defendant petitioned DEP every year from 1984-87 for extensions of time in meeting the in-stream color limitation of 50 PCUs. The 1984 Permit was to expire in 1989, but Defendant made a timely application for renewal, and in September 1989 the Permit was administratively extended. Defendant states that at that time it also began discussions with DEP about various environmental regulatory issues faced by Defendant in hopes of meeting regulatory requirements. Defendant's intent was to implement a modernization project of the Mill at a cost of $160 million, at least in part to reduce color levels in wastewater.

On May 16, 1989, the Environmental Hearing Board ("EHB") approved an agreement entitled "Amended Consent Adjudication" to which Defendant and DEP were the parties ("1989 Adjudication"). EHB provided notice of the 1989 Adjudication in the Pennsylvania Bulletin and gave aggrieved parties 20 days to appeal the terms of the 1989 Adjudication. No objections were filed. The 1989 Adjudication purports to amend the 1973 Agreement. (Hirsch Aff., Ex. J at 1.) The 1989 Adjudication sets forth color limits different from those contained in the 1984 Permit. Specifically, the 1989 Adjudication states that no later than July 1, 1994, Defendant was to achieve an annual instream color limit of 200 PCUs, a monthly limit of 225 PCUs, and a daily limit of 375 PCUs. These in-stream color limits were to be measured from Martin's Bridge, a point 1.25 miles downstream from the Mill.

The 1989 Adjudication also contains the following:

Nothing set forth in this Amended Consent Adjudication is intended, nor shall be construed, to relieve or limit Glatfelter's obligation to comply with any existing or subsequent statute, regulation, permit or order except with respect to the discharge of color from the Facility to the West Branch of the Codorus Creek. . . . This Amended Consent Adjudication shall establish Glatfelter's obligations under any statute, regulation, order or permit with respect to the discharge of color from [the Mill].

(Hirsch Aff., Ex. J at 10 (emphasis added).)

On September 27, 1989, DEP sent Defendant a letter that stated "[f]or clarification purposes, a revised page 14 b [of the 1984 Permit] is also enclosed to reference the interim color limits for outfall 001 that are in effect as a result of the amended Consent Adjudication dated May 16,1989." (Missimer Aff., Ex. L.) The revision simply states "[i]nterim effluent limits for outfall 001 shall be in accordance with the amended Consent Adjudication dated May 16, 1989." (Id.)

The 1989 Adjudication also provided for civil penalties if Defendant failed to comply with the color limits contained therein. Defendant exceeded these limits on three occasions in 1997 and paid civil fines. Furthermore, the 1989 Adjudication required Defendant to do pilot studies on pulp bleaching processes to assist in redesigning the Mill's bleach plant. On March 28, 1991, Defendant submitted reports from its initial pilot studies to DEP. In 1994 Defendant submitted preliminary and final plans for what it contends were "pilot studies of external color reduction technologies." (Def. Statement Undisputed Facts, hereinafter "Def. Facts," at ¶ 32.) Plaintiffs assert that there is an issue of fact as to the nature of the plans submitted. It is Plaintiffs' position that "[t]he preliminary and final plans for pilot studies did not address external color reduction technologies, but rather process changes." (Pl.Resp. to Def. Facts, hereinafter "Pl.Resp. Facts," at ¶ 32.) DEP did not respond to Defendant's submissions, and the plan was implemented.

On June 29, 1995, Defendant sent a letter informing DEP that its study had been terminated on April 30, 1995, because an enzyme treatment resulted in no significant reduction in effluent color. The parties dispute whether DEP actually "approved" the enzyme study. (Def. Facts at ¶ 36; Pl.Resp. Facts at ¶ 36.) The parties are also in disagreement over whether the study constituted an "external color reduction study." Regardless, Defendant did submit a report to DEP on August 30, 1995, regarding a study that it had conducted.

Defendant sent another letter to DEP on June 30, 1995, explaining that it was pursuing other methods for reducing effluent color. Under the 1989 Adjudication, DEP was to review the external color reduction plan submitted by Defendant within 60 days.

Plaintiffs filed suit against Defendant on June 9, 1999. On September 27, 2000, DEP issued Defendant a new NPDES permit ("2000 Permit") which was to go into effect on October 1, 2000. The 2000 Permit imposes end-of-pipe limits on Defendant that are designed to meet the 50 PCU water quality standards in the Codorus. Simultaneous with the issuance of the 2000 Permit, DEP issued an administrative order ("2000 Order") that provides deadlines for Defendant to achieve the designated water quality standards for the Codorus. (Def.Supp.Ex. 2.)*fn4 The 2000 Order also mandates the submission of various test results and reports by Defendant to DEP. Finally, the 2000 Order imposes interim effluent limits on Defendant until the time that the final limits are achieved.

On September 14, 2000, Defendant appealed the color limits contained in the 2000 Permit. Defendant also petitioned the EHB for a supersedeas to stay the imposition of the color limits in the 2000 Permit pending the outcome of the appeal. All of the Plaintiffs in the instant action intervened in the supersedeas hearing. A hearing on the supersedeas petition took place on September 27-28, 2000, before Administrative Law Judge ...

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