United States District Court, W.D. Pennsylvania
[Copyrighted Material Omitted]
For PENNENVIRONMENT, SIERRA CLUB (2:12-cv-00527-RCM), Plaintiffs: Thomas J. Farrell, LEAD ATTORNEY, Emily McNally, Farrell & Reisinger LLC, Pittsburgh, PA; Bruce J. Terris, Carolyn Smith Pravlik, Patrick A. Sheldon, PRO HAC VICE, Terris, Pravlik & Millian, LLP, Washington, DC.
For PENNENVIRONMENT, SIERRA CLUB (2:13-cv-01395-RCM), Plaintiffs: Thomas J. Farrell, LEAD ATTORNEY, Emily McNally, Farrell & Reisinger LLC, Pittsburgh, PA.
For PENNENVIRONMENT, SIERRA CLUB (2:13-cv-01396-RCM), Plaintiffs: Thomas J. Farrell, LEAD ATTORNEY, Emily McNally, Farrell & Reisinger LLC, Pittsburgh, PA.
For PENNENVIRONMENT, AND, SIERRA CLUB (2:14-cv-00229-RCM), Plaintiffs: Thomas J. Farrell, LEAD ATTORNEY, Farrell & Reisinger LLC, Pittsburgh, PA.
For BUFFALO & PITTSBURGH RAILROAD, INC. (2:14-cv-00229-RCM), Defendant: Jamie A. Edwards, McGuireWoods LLP, Pittsburgh, PA.
MEMORANDUM OPINION AND ORDER
ROBERT C. MITCHELL, United States Magistrate Judge.
Plaintiffs, PennEnvironment and Sierra Club, bring these citizen suits pursuant to
section 505 of 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), the Borough of Ford City (Ford City), and Buffalo & Pittsburgh Railroad, Inc. (BPRI), 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 cross-motions for summary judgment on the issue of Plaintiffs' standing, filed by Plaintiffs and PPG. For the reasons that follow, Plaintiffs' motion for partial summary judgment will be granted and PPG's motion will be denied.
The Site is located in North Buffalo and Cadogan Townships in Armstrong County, Pennsylvania. It is bordered by Route 128 to the north, the Allegheny River to the south, Glade Run, a tributary of the Allegheny River, to the west and a feature that PPG terms the " Drainage Ditch" which flows southward and discharges into the Allegheny River to the east. (CWA Compl. ¶ 15.) From 1949 until 1970, PPG used parts of the property to dispose of slurry waste and solid waste from its former glass manufacturing facility across the river in Ford City, Pennsylvania. (2009 Administrative Order at PADEP3).
PPG created three slurry lagoons in an area formerly used as sandstone quarry in which it deposited the slurry waste. (Treatment Plan Report, Former Ford City Facility Slurry Lagoon Area, prepared by Shaw Environmental, Inc. (Dec. 2012) (" Shaw Treatment Plan Report" ) at 2). Collectively, the lagoons and surrounding area comprise an area of approximately 77 acres called the " slurry lagoon area" (" SLA" ) on the western part of the property. PPG also disposed of solid waste in a landfill at the Site called the " solid waste disposal area" (" SWDA" ) beginning in the 1920s until 1967. (2009 Administrative Order at PADEP3.) The Allegheny River lies to the south of both the SLA and SWDA. Glade Run, a tributary to the Allegheny River, lies to the west of the SLA. (Treatment Plan Report at 1.)
In June 1994, the Pennsylvania Department of Environmental Protection (PADEP) conducted sampling and a survey of the streams in and around the Site. (ECF No. 119 Ex. 10.) The report of the survey stated that sediment samples collected from Glade Run downstream of the SLA contained high levels of lead, chromium, arsenic, barium, copper, nickel, aluminum and zinc. (Id. at PPG008633.) The report found that, of those metals, the lead, arsenic, barium, and chromium sediment analysis exhibited hazardous waste characteristics. The report also stated that there were no benthic macroinvertebrates present in the substrate collected from Glade Run downstream of the SLA. The report
compared sediment samples from Glade Run downstream of the SLA with samples taken upstream of the SLA and found that the downstream samples exhibited higher levels of lead, chromium, copper, nickel, aluminum, and zinc. (Id. at PPG008634). The report concluded that the discolored seeps have a visible impact on the stream and that the slurry lagoon is having an adverse impact on the stream water quality and aquatic life. (Id. at PPG008635).
In a subsequent memorandum, PADEP noted that " the slurry lagoon seeps are having an adverse impact on aquatic life in on-site stream." (ECF No. 119 Ex. 11.) The memorandum found that the data from PPG's own risk assessment submitted to PADEP indicated that both lead and antimony in sediments may " impact aquatic life and benthic organisms potentially exposed to slurry lagoon sediments." (Id. at PADEP000612.)
2009 Administrative Order
On March 9, 2009, PADEP issued an Administrative Order to PPG regarding the site which contained factual findings and imposed certain performance obligations. (2009 Administrative Order at PADEP2-9). In the letter accompanying the Administrative Order, PADEP 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." (ECF No. 119 Ex. 12.)
The Administrative Order described the process by which precipitation becomes contaminated with hazardous substances: " Precipitation which infiltrates the Slurry Lagoons and the Landfill at the Site becomes contaminated with hazardous substances, as defined under the Hazardous Sites Cleanup Act (HSCA), [* * *] and then is discharged into the waters of the Commonwealth. This contaminated precipitation is known as 'Leachate.'" (2009 Administrative Order at PADEP4). The Order further stated that " PPG is allowing contaminated Leachate and other liquids to be discharged from the Site into waters of the Commonwealth, resulting in pollution of those waters of the Commonwealth." (Id. at PADEP5). The Administrative Order stated that the industrial waste discharges from the Site " are pollutional and have a very high pH and contain metals and other toxic chemicals." (Id. at PADEP4).
The Administrative Order imposed, inter alia, the following Performance Obligations on PPG:
a. PPG shall conduct weekly monitoring and reporting of seeps, for flow, total suspended solids, oil and grease, iron, aluminum, lead, chromium, antimony, arsenic, and pH and report results to PADEP on a monthly basis;
b. Until such time as discharges, leachate, and seeps are collected and conveyed to an industrial waste treatment facility and the discharge from said facility is authorized by an NPDES permit, PPG shall implement interim abatement measures;
c. PPG shall submit to the Department for review and approval a treatment plan and schedule (" Treatment Plan" ) to collect and treat all industrial waste discharges, Leachate and seeps from the Site into the waters of the Commonwealth.
(Id. at PADEP6-7 ¶ ¶ A, C, D.) Additionally, the sampling and monitoring are required to comply with the sample collection, preservation and laboratory analysis in 40 CFR Part 136 (requirements for reports submitted under a National Pollutant Discharge Elimination System (" NPDES" )). (Id. at PADEP6 ¶ A.)
Per the 2009 Administrative Order, PPG has been submitting these Monthly Progress Reports to PADEP, with the sampling and monitoring results, beginning in April 2009. (PPG App. Ex. B.)
Interim Abatement System and Treatment Plan
On July 2, 2009, PADEP approved PPG's revised interim abatement plan and issued an Addendum to the Administrative Order. (ECF No. 119 Ex. 16 at PADEP16-19). Attachment A to the Addendum required that the interim system comply with several additional requirements, including a prohibition on the discharge of untreated or ineffectively treated wastewaters. (Id. at PADEP18). The Addendum imposed monitoring requirements for ten parameters: flow, suspended solids (" TSS" ), oil and grease, aluminum, arsenic, iron, lead, chromium, antimony, and pH. (Id.) The Addendum also imposed effluent limitations for three of those parameters: TSS, oil and grease, and pH, while the other parameters were required to be monitored and reported. The results of the sampling and monitoring are required to be submitted to PADEP (both Chief of the Operations Section and Chief of the Permits Section in the Water Management Program) within 28 days following the end of the calendar month on the enclosed form, a discharge monitoring report (" DMR" ). (Id.)
PPG's interim abatement system under the Administrative Order and Addendum became operational in 2010. (Shaw Treatment Plan Report at 6.) PPG collects flow from several seeps, as well as the flow through the drainage ditch, and directs it to an interim treatment system (also called the interim abatement system or " IAS" ), where the pH is adjusted. (Id.)
Plaintiffs state that some seepage water are directed to the Interim Treatment System and treated for pH before being discharged through Outfall 001, but that additional seeps remain uncollected. (Treatment Plan Report at 46; Kilburg Dep. at 39:1-20.)
Pursuant to the monitoring requirements of the July 2009 Addendum, PPG monitors the discharges from the treatment system for the presence of aluminum, arsenic, iron, lead, chromium, and antimony, all of which, Plaintiffs note, are consistently documented in the discharges. (ECF No. 119 Ex. 19 at PADEP2937-2972). PPG responds that PENTOXSD modeling showed that applicable Pennsylvania Water Quality Standards in the Allegheny River were fully protected using conservative estimates of aluminum, iron, lead, chromium, and antimony concentrations in the discharges from the interim treatment system on the Site. (Shaw Treatment Plan Report at 50-51.)
PPG states that it has submitted the required monthly DMRs to PADEP, containing the required sampling and monitoring results, beginning in February 2010 (containing January 2010 data as the treatment and collection system was installed at the end of January). (ECF No. 141 Ex. D.) Plaintiffs dispute this assertion on the basis that the monthly DMRs contain 268 discharge violations, which they contend are material to issues of PPG's liability.
PPG states that the monthly DMRs contain exactly the same information as the exemplar DMR provided by the United States Environmental Protection Agency (" EPA" ) under the NPDES permits program.
(ECF No. 141 Ex. E.) Plaintiffs dispute this statement, contending that the exemplar DMR resembles the DMRs submitted by PPG to PADEP in format only and that the DMRs that PPG is required to submit do not include all of the information that would be required on DMRs submitted pursuant to an NPDES permit. For example, PPG's DMRs pertain only to Outfall 001, require monitoring for only ten parameters and include effluent limitations for only three parameters. Furthermore, a DMR submitted pursuant to an NPDES permit provides information regarding the level of pollutants in a discharge to the applicable receiving water. The data submitted by PPG in its DMRs reflects the level of pollutants at the point of discharge from the interim abatement system via Outfall 001, not the point of discharge to the Allegheny River. For example, Outfall 001 feeds culverts at the level of the railroad tracks and does not discharge directly to the Allegheny River. (Shaw Treatment Plan Report, App. M.) The pH at the culverts prior to discharge to the Allegheny River is considerably higher than the pH recorded at Outfall 001. (Pls.' Second Supp. Notice Letter, Attach. 6.) Moreover, the requirements of the Administrative Order were issued without the procedures required for the application and grant of an NPDES permit, which mandate the disclosure of additional information not part of the DMRs and afford opportunities for public participation.
PPG conducted sampling of sediments from the Allegheny River, Glade Run, and the drainage ditch/Stream 2 on March 27-28, 2012. (Sediment Sample Locations, Key Environmental, Inc. at PPG004028). Analysis of the samples demonstrated the presence of arsenic, cadmium, copper, iron, lead, and manganese. TestAmerica Analytical Report, Job Number: 180-9352-1, PPG Ford City Site (April 19, 2012) at PPG003799-3838). PPG notes that Plaintiffs' exhibit is dated March 25, 2013 (not March 25, 2012), which indicates that it was prepared almost a year after the April 19, 2012 Test Results. Thus, PPG claims that Plaintiffs have not shown that the Test Results provide sediment sample results from the Allegheny River, Glade Run, and the Drainage Ditch. Nevertheless, as Plaintiffs observe, PPG has not denied that the sediment samples reflect the sampling locations analyzed in the Report and they contend that PPG's counsel represented that the March 25, 2013 map represented the locations of the samples in the April 19, 2012 report. (Pls.' Reply App. Ex. 3.)
In December 2012, PPG submitted a Treatment Plan Report under the Administrative Order, which discussed remedial alternatives and the selection of a proposed remedial alternative involving limited enhancements to the current interim abatement system. (Shaw Treatment Plan Report at 87-89.) Plaintiffs note that the Treatment Plan Report reported that leachate discharged from the seeps has a pH of 9.0-12.0 standard units and contains aluminum, arsenic, chromium, iron, lead, and antimony, all of which are present in the waste material in the SLA. (Id. at 39.)
Plaintiff Organizations and Members
Plaintiff PennEnvironment is a non-profit organization in the State of Pennsylvania
whose mission is to protect and preserve Pennsylvania's environment through education, research, lobbying, litigation, and citizen organizing. (Masur Aff. ¶ ¶ 3-4.) PennEnvironment has approximately 15,000 members who make financial contributions, while approximately 100,000 individuals subscribe to its e-mail action network. (Id.) David Masur has served as the director of PennEnvironment since 2002. (Masur Aff. ¶ 2.)
Members of PennEnvironment live in and around Ford City, Pennsylvania, and in the vicinity of the Allegheny River. Members also recreate in and around the Allegheny River. (Masur Aff. ¶ 8.)
PennEnvironment engages citizens to assist in lobbying efforts and is involved in litigation to protect the State's waterways. (Masur Aff. ¶ ¶ 6-7.) PennEnvironment monitors pollution and water quality in the State and sends out email updates to members biweekly. (Masur Dep. at 24.) PennEnvironment also issues reports on these topics, including a 2012 report, " Wasting Our Waterways 2012: Toxic Industrial Pollution and the Unfulfilled Promise of the Clean Water Act." (Masur Aff. ¶ 9.) These efforts depend on accurate and complete information about water quality. (Masur Aff. ¶ 11; Masur Dep. at 92-93.)
PennEnvironment states that PPG's failure to obtain an NPDES permit for its discharges from the Site deprives it of complete and accurate information and an opportunity for public participation in efforts to protect the quality of the Allegheny River, foreclosing a mechanism " by which the public can both be educated and engaged, use data, and take action to try and clean up the river." (Masur Dep. at 92; see also Masur Aff. ¶ 11.)
PPG responds that Mr. Masur admitted that, prior to the commencement of this suit, PennEnvironment did not engage any of its members in a campaign or lobbying efforts on " how to get their voices heard" regarding the Site, nor has PennEnvironment ever lobbied PADEP or any other authority regarding the Site. (Masur Dep. at 37:15-25, 38:1-21, 39:6-13.) Plaintiffs state that Mr. Masur testified that PennEnvironment " engage[s] [its] members around broader issues" related to the case. (Masur Dep. at 38:8-10.) They also indicate that PennEnvironment and the Sierra Club submitted comments to PADEP regarding the inadequacy of PPG's Treatment Plan Report. (Pravlik Letter Mar. 27, 2013.) And they reiterate that the information submitted by PPG to PADEP is not equivalent to the information that would be available pursuant to the application for and issuance of an NPDES permit.
PPG states that at no time has PennEnvironment ever researched the Site through PADEP's public databases or requested, formally or informally, PPG's monthly progress reports or DMRs submitted to PADEP. (Masur Dep. at 36:17-25, 37:1-2, 40:21-25, 41:1-10, 88:18-20, 89:19-25, 90:1-3.) PennEnvironment disputes this claim, stating that it and Sierra Club, through their counsel, have requested and obtained these materials from PADEP. (Pravlik Aff. ¶ 8.)
PPG notes that PennEnvironment does not report on all water quality issues in biweekly updates to its e-mail subscriber
list (which is broader than the organization's actual members) and decides which issues to report based on waterways that PennEnvironment's local members " care deeply about." (Masur Dep. at 25:22-25, 26:3-12, 28:10-24.) PennEnvironment has never been unable to send out an e-mail update because of lack of information specific to the Site. (Id. at 95:1-9.) For the referenced " Wasting Our Waterways 2012: Toxic Industrial Pollution and the Unfulfilled Promise of the Clean Water Act" report, Mr. Masur admitted that the information for this report did not come from NPDES permit reporting requirements, but rather from the Toxic Release Inventory (TRI), which he acknowledged has certain " threshold requirements for reporting" that " vary based on the emission and, potentially, how toxic it is." (Id. at 97:23-25, 98:1-7, 99:4-17.)
PPG states that PennEnvironment first circulated to its members information regarding the Site in a press release distributed after this lawsuit was first filed in March 2012. (Masur Dep. at 45:20-25, 46:1-25, 47:1-12;  Masur Aff. ¶ 9.) Plaintiffs respond that the press release was distributed on January 4, 2012, three months prior to the filing of the lawsuit, on March 30, 2012. (Masur Dep. at 45:20-46:11.) PPG notes that PennEnvironment has been able to educate its members on environmental issues despite their lack of acquired information on the Site. (Masur Dep. at 95:1-9, 24-25, 96:1-3, 15-19, 97:2-8.)
Plaintiffs reply that they have been unable to provide their members with " accurate and complete information" about PPG's discharges because it did not obtain an NPDES permit. (Masur Aff. ¶ 11; Masur Dep. at 83:12-84:22, 85:8-22; 90:4-15.)
PPG states that PennEnvironment first became aware of the Site in approximately 2008 from local news outlets, one being the Pittsburgh Post-Gazette. (Masur Dep. at 42:24-25; 43:1-18.) Plaintiffs emphasize that the organization was aware of the Site prior to discussions regarding the lawsuit. (Masur Dep. at 60:22-23.)
PPG notes that PennEnvironment has admitted it had " no plans" to file a lawsuit against PPG with respect to the Site until it was contacted by the law firm of Terris Pravlik and Millian, LLP (" TPM" ). (Masur Dep. at 60:19-25, 61:1-5.) Plaintiffs respond that, as early as February 1, 2010, Masur spoke with TPM attorney Alicia Alcorn regarding PennEnvironment's interest in filing citizen suits and his assessment that enforcement actions could be brought for sites in western Pennsylvania. (Alcorn Aff. ¶ 4.)
The Retainer Agreement between PennEnvironment and TPM states that PennEnvironment will not be liable for any of TPM's fees or expenses incurred in connection with this suit. (PennEnvironment Retainer Agreement ¶ ¶ 2-3.) The Retainer Agreement further provides that the PennEnvironment " shall make all good-faith efforts to assist the Firm [TPM] in locating individuals who are willing to participate in the lawsuit in order to satisfy standing requirements." (Id. ¶ 8.)
PPG notes that PennEnvironment did not have any knowledge of any individual members who claimed to be harmed or injured by the pollution from the Site prior to the filing of the Complaints or before it
sent the Notice of Intent to Sue Letter to PPG. (Masur Dep. at 111:9-13, 113:2-6.) After suit was filed, PennEnvironment sent two e-mails, the first dated November 13, 2012 and the second dated March 11, 2013, in which it requested " members who want to assist us" with regard to the Site. (ECF No. 141 Ex. O; Masur Dep. at 26:13-25, 27:1-5.)
Plaintiffs respond that it is not material whether the members were identified when suit was filed. TPM has previously served as counsel to organizations in CWA and RCRA suits who filed cases prior to determining specific members who were willing to participate. (Pravlik Aff. ¶ ¶ 3-5.)
PPG states that, as to the organization itself, Mr. Masur testified that the only " harm" to the organization is that its interests in monitoring polluters and collecting information are harmed by PPG's failure to obtain an NPDES permit for the discharges from the Site and PPG's failure to following the monitoring and reporting obligations in CWA permits. (Masur Dep. at 83:21-25, 84:1-7, 85:8-22; see also Masur Aff. ¶ 11.) Plaintiffs point out that Mr. Masur testified that, as stated in his affidavit, PennEnvironment's interest in obtaining accurate and complete information about water quality to report to its members and to pursue organizing efforts, and legislative and litigation efforts, is harmed by PPG's failure to obtain an NPDES permit and comply with the requirements of the CWA. (Masur Dep. at 83:12-84:22, 85:8-22, 90:4-15; Masur Aff. ¶ 11.) Mr. Masur further testified that PPG's failure to do so has deprived PennEnvironment of opportunities for public education and advocacy through participation in the permitting process as required under the CWA and state regulations. (Masur Dep. at 92:1-93:23.)
Plaintiff Sierra Club is a national non-profit organization dedicated to exploring, enjoying, and protecting the wild places of the Earth; to practicing and promoting the responsible use of the Earth's ecosystems and resources; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives. The Sierra Club has approximately 2.1 million members and supporters. (Au Aff. ¶ 3.)
The Pennsylvania Chapter of the Sierra Club is a subunit of the Sierra Club, with approximately 24,000 members. (Au Aff. ¶ 4.) Thomas Y. Au has served as Conservation Chair of the Pennsylvania chapter since 2008. (Au Aff. ¶ 2.)
Sierra Club states that members of the Pennsylvania Chapter live, exercise, work, raise children, farm, garden, fish, bird watch, hike, camp, and recreate on a regular basis in western Pennsylvania and along the Allegheny River, including the stretch of the river near the Site and the areas surrounding the Site. (Au Aff. ¶ 6.) Many members are concerned about the detrimental effects of pollution from the Site on the Allegheny River. (Au Aff. ¶ 9.)
PPG responds that, at his Rule 30(b)(6) deposition, Mr. Au could not identify any individual member of the Sierra Club who claimed to have sustained harm from the Site at the time the Complaints were filed or before it sent the Notice of Intent to Sue Letter to PPG. (Au 30(b)(6) Dep. at 139:6-11, 16-25, 140:1-25, 141:1-3.) It
was not until a year after this case was filed that Sierra Club sent an email to its members requesting the participation of members who were " willing and able to assist the Sierra Club" with this litigation in order to satisfy " the legal standard of 'standing.'" (ECF No. 141 Ex. L at 2, 3.) Plaintiffs respond that the material issue is whether the injury existed, not whether Mr. Au could identify individual Sierra Club members who were harmed on a particular date.
The Sierra Club conducts research, advocacy, public education, and litigation regarding water quality issues in Pennsylvania. The Sierra Club has established a Water Issues Committee that publishes a newsletter five or six times a year to provide information to members about water quality issues in Pennsylvania. (Au Aff. ¶ ¶ 5, 7.) Mr. Au states that the Sierra Club's research, advocacy, and public education efforts require access to accurate information about water quality in Pennsylvania, including information disclosed by dischargers pursuant to their applications for and compliance with discharge permits. (Au. Aff. ¶ 10.) Without the information that it could obtain from PPG's application for and operation under an NPDES permit and related monitoring and reporting, the Sierra Club cannot provide its members with complete information about the quality of waterways in the vicinity of the Site, including the Allegheny River. (Au Aff. ¶ 10.)
PPG responds that the Sierra Club has not engaged in any advocacy with respect to the Site before or after this suit was filed in March 2012 except for a meeting in PADEP in June of 2013. (Au Standing Dep. at 45:25, 46:1-25, 47:1.) Mr. Au testified that it was not until after an executive committee meeting on September 24, 2011 that the Sierra Club decided to take any action regarding the Site after it was approached by PennEnvironment. He indicated that he attended a Pennsylvania Chapter of the Sierra Club executive committee meeting on September 24, 2011 and that recorded minutes of that meeting were prepared. (Au 30(b)(6) Dep. at 149:9-12, 150:8-10, 15-19, 152:3-11;  ECF No. 141 Ex. I.) It was not until after this meeting that Sierra Club decided to take any action regarding the Site after it was approached by PennEnvironment and TPM. (Au 30(b)(6) Dep. at 109:18-25; see also Masur Dep. at 60:5-25.) The minutes from the meeting indicate that:
At a former [PPG] factory in Ford City Armstrong County, a lagoon in which the company dumped glass polishing waste is leaking toxics into the Allegheny River. The law firm of Terris, Pravlik, and Millian plans to sue PPG to force it to clean up the lagoon and pay civil penalties with attorney fees. The Sierra Club has been invited to join the suit for free.
(ECF No. 141 Ex. I at SC-PA000046.) See Au 30(b)(6) Dep. at 154:1-24, 155:1-25, 157:8-25, 158:1-6. Plaintiffs indicate that TPM frequently agrees that plaintiff organizations will not be responsible for costs and expenses in CWA and RCRA suits in order to ...