United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
ROBERT C. MITCHELL, 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 is Plaintiffs' motion for preliminary injunction, which seeks to compel PPG to apply for two National Pollutant Discharge Elimination System ("NPDES") permits regarding its discharges related to the Site and, in the interim, to comply with the requirements of the Administrative Order issued in 2009 by the Pennsylvania Department of Environmental Protection (PADEP). For the reasons that follow, the motion will be granted in part and denied in part.
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) ("TPR") 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. (TPR at 1.)
In June 1994, 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." (Id. at PADEP 1.)
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;
C. 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;
D. 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.)
Samuel Harper, who prior to his retirement in October 2013 was the Program Manager for the Water Management Program at PADEP (Harper Aff. ¶ 1),  explains that he issued the Administrative Order because of:
PPG's long-standing non-compliance with federal and state law. In particular, the Department was concerned with PPG's discharge of polluted or contaminated leachate or wastewater to the waters of the Commonwealth and of the United States. As early as 1971, the Department had ordered PPG to treat its discharges from the Site or to eliminate the discharges. The site history was reviewed at the time the Administrative Order was issued. In 2009 the PADEP, recognizing that PPG continued to discharge pollutants from the Site into state and federal waters without being authorized by an NPDES permit, issued the Administrative Order directing PPG to apply for and obtain an NPDES permit.
The Administrative Order was issued to address PPG's discharges to the waters of the Commonwealth of Pennsylvania, particularly the Allegheny River and adjacent wetlands, by requiring PPG to obtain and abide by the required NPDES permit(s) for the Site.
At the time that the Administrative Order was issued, PPG was, and had been for decades, required by law to have an NPDES permit for its discharges from the Site. This obligation exists irrespective of PPG's issuance in 2001 of a notice of intent to remediate the Site under Pennsylvania's Land Recycling Program ("Act 2"), which had been available to PPG since early in 1995. Remediation under Act 2 is voluntary. An NPDES permit is not. PPG's obligation to have an NPDES permit continues if PPG decides to abandon voluntary remediation under Act 2.
The Administrative Order also included other requirements, such as the construction of an interim treatment system, to minimize the impact of PPG's polluted discharges in the period before it applied for, obtained, and came into compliance with an NPDES permit. These requirements were not intended to either supplant or delay PPG's compliance with the NPDES permitting system.
The Administrative Order was purely focused on requiring PPG to obtain an NPDES permit. Nothing in the Order was intended to address or relate to Act 2.
(Harper Aff. ¶¶ 3-7.) Plaintiffs note that James Nairn, PPG's expert on Act 2 (Nairn Dep. at 135-36),  explained that Act 2 is a voluntary program, pursuant to which PPG can unilaterally decide how little or how much remediation it wishes to undertake, and it could even walk away without taking any action. (Nairn Dep. at 9, 13, 37.) He also indicated that, in his experience, the longest remediation effort took "at least four or five years, maybe longer" (Nairn Dep. at 28), but Plaintiffs note that it has been 13 years since PPG filed its notice of intent to remediate and it is not close to completing any remediation action.
Interim Abatement System
PPG submitted its construction plan for the Interim Abatement System ("IAS") on April 8, 2009, and submitted the Treatment Plan in June of 2009. (ECF No. 178 Exs. B, C.) On July 2, 2009, PADEP issued its approval (pursuant to a May 26, 2009 addendum to the IAS slightly modifying the original IAS). (ECF No. 178 Exs. D, E.) The Addendum described the location where pH was to be monitored, with pH of the treated discharges to be controlled in the range of 6 to 9 standard units. (ECF No. 178 Ex. E at 5.) PADEP's July 2, 2009 approval contained specific effluent limitations for the treated discharges from the IAS, including pH and Total Suspended Solids ("TSS"), and also imposed metal monitoring requirements for this treated discharge. (ECF No. 178 Ex. D at 3-4.)
The IAS has been in operation since 2010, and PPG represents that its operation will continue as long as necessary pending full implementation of the permanent remedy. (O'Hara Aff. ¶ 18.) Under the IAS, PPG constructed and has been operating a treatment system that collects and treats specified seeps from the SLA and discharges the treated water through Outfall 001. (O'Hara Aff. ¶¶ 4-6, 18.) As required by the Administrative Order, PPG continues to operate the IAS and submits progress reports and discharge monitoring reports ("DMRs") to PADEP. (O'Hara Aff. ¶¶ 4-5.) PPG states that its implementation of the IAS complies with PADEP's specific instructions in order to minimize any potential harm pending implementation of the permanent remedy. (O'Hara Aff. ¶ 18.)
PPG indicates that, at no time since the IAS started operating in 2010 has PADEP ever penalized PPG for noncompliance with the Administrative Order or PADEP's authorization for the IAS, or indicated to PPG that it is dissatisfied with PPG's efforts to comply. (O'Hara Aff. ¶¶ 4, 16, 18.) Its TPR indicated that pH levels have been in the required 6 to 9 standard units range. (TPR at 48.)
Plaintiffs submit evidence that the pH values have frequently been measured above 9 standard units, and as high as 11.48 standard units. (ECF No. 105 at 36-37; Pls.' Hr'g Ex. 18.) PPG responds that these values were measured at the culverts, which are not owned by PPG and are not regulated as part of the Administrative Order.
Plaintiffs also note that the leachate from the seeps of the SLA is contaminated with at least aluminum, arsenic, chromium, iron, lead and antimony. (TPR at 38-39.) These metals are not eliminated or treated by the IAS and are thus discharged into the Allegheny River.
Plaintiffs' expert, Dr. Bruce Bell, states that, based on data collected by PPG, it is discharging at average flow from Outfall 001 from over 347 to over 1, 182 pounds of pollutants, including metals, per day into the Allegheny River. (Bell Aff. ¶ 6.) PPG's engineer, Patrick O'Hara, responds that PPG's discharges average less than 5.0 pounds per day and that the discharge of these metals since inception of the IAS accounts for less than 1.0 pound per day. (O'Hara Aff. ¶ 9.) O'Hara goes on to say that Dr. Bell has inappropriately characterized the silica content as a "pollutant" as a substantial portion of the mass he reports appears to be dissolved silicon or silica, which he avers is not regulated as a "priority pollutant" under the CWA, nor regulated under Pennsylvania's Act 2 program since its presence in the environment is ubiquitous and is not subject to remediation standards; and that PADEP has not requested that PPG monitor or report dissolved silicon/silica from Outfall 001 of the IAS. (O'Hara Aff. ¶¶ 10-12.) Finally, he states that:
Silicon/silica in its solid form is an abundant, hard, unreactive, colorless compound and is essentially non-toxic when ingested orally. Silica is one of the most common elements on earth (it is commonly found in nature as quartz, as well as in various living organisms) and it is the primary component of beach sand and makes up a significant component of soils and river sediments in Western Pennsylvania and throughout the world.
(O'Hara Aff. ¶ 13.)
Dr. Bell replies that Mr. O'Hara has not provided the basis for the discharge amounts he recites. (Bell Aff. II ¶ 7.) More importantly, he notes that the CWA regulates all pollutants, including "sand." Moreover, the CWA does not recognize the concept of "priority pollutant." It does, however, recognize "toxic pollutants" such as most of the metals in PPG's discharges. In addition, PADEP has set interim limits on pH and TSS, neither of which is a toxic pollutant. He concludes that "the vast majority of NPDES permits contain effluent limits for pollutants that are not toxic or priority pollutants." (Bell Aff. II ¶ 8.) Plaintiffs also note that PADEP has advised PPG that one of the failings of its TPR is that the seep water contained a significant amount of silicon and PPG's:
proposed remedy does not include any removal of this material, which may cause precipitation at the outfall or in the River. PPG should revise the Plan to include additional tests to determine the appropriate treatment and removal of silicon to ...