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.
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.
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
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").
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
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 ...