Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PennEnvironment and Sierra Club v. PPG Industries, Inc

United States District Court, W.D. Pennsylvania

January 23, 2017

PENNENVIRONMENT and SIERRA CLUB, Plaintiffs,
v.
PPG INDUSTRIES, INC., BOROUGH OF FORD CITY, and BUFFALO & PITTSBURGH RAILROAD, INC., Defendants, PPG INDUSTRIES, INC., Third-Party Plaintiff,
v.
AS AMERICA, INC. d/b/a AMERICAN STANDARD BRANDS a/s/i TO ELJER, INC., ELJER PLUMBINGWARE, INC., ELJER INDUSTRIES, INC., and ELJER HOLDING CORP., Third-Party Defendant.

         Member Cases: 12-527, 13-1395, 13-1396, 14-229

          MEMORANDUM OPINION AND ORDER

          ROBERT C. MITCHELL United States Magistrate Judge

         Presently before the Court is a motion (ECF No. 277), filed by the Third-Party Defendant, AS America, Inc. d/b/a American Standard Brands ai to Eljer, Inc., Eljer Plumbingware, Inc, Eljer Industries, Inc. and Eljer Holding Corp. (“AS America”), to stay and try separately the claims asserted against it by the Third-Party Plaintiff, PPG Industries, Inc. (“PPG”). PPG, along with nominal defendants the Borough of Ford City (Ford City), and Buffalo & Pittsburgh Railroad, Inc. (BPRI), have been named by Plaintiffs, PennEnvironment and Sierra Club, in 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), 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.

         PPG filed a Third-Party Complaint against AS America, seeking contribution and/or indemnity under Pennsylvania law and specific provisions of the Hazardous Sites Cleanup Act, 35 P.S. §§ 6020.101 to 6020.1305 (HSCA), regarding any liability that PPG is responsible for relating to a portion of the Site called the Eljer Landfill. AS America's liability is premised on its being a successor to various entities which deposited off-spec ceramic plumbing waste (i.e., toilets, sinks) from a Ford City manufacturing plant in the Eljer Landfill from 1988 to 1998 pursuant to a beneficial reuse permit issued by the Pennsylvania's Department of Environmental Resources (now the Pennsylvania Department of the Environmental Protection, “PADEP”).

         AS America filed a motion to dismiss the Third-Party Complaint, which was granted in part and denied in part by Order dated June 9, 2016 (ECF No. 264). The remaining third-party claims are Count I (common law contribution) and Count III (contribution under HSCA section 705). AS America filed an answer to the Third-Party Complaint (ECF No. 265), in which it denied that it is the successor in interest to Eljer Plumbingware, Inc. (now known as OEP, Inc.), which disposed of waste in the Eljer Landfill or to Eljer Industries, Inc. (now known as OEI, Inc.), its corporate parent. AS America now seeks to have the resolution of the third-party claims stayed and tried separately from the claims asserted against PPG. For the reasons that follow, the motion will be denied.

         Standard of Review

         Rule 42 of the Federal Rules of Civil Procedure provides that:

For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.

Fed. R. Civ. P. 42(b). Rule 14, which governs Third-Party practice, provides that:

Any party may move to strike the third-party claim, to sever it, or to try it separately.

Fed. R. Civ. P. 14(a)(4). As described by one district court:

The decision to sever a claim is addressed to the discretion of the trial court. Banks v. Travelers Ins. Co., 60 F.R.D. 158, 163 (E.D. Pa. 1973). Separate trials are generally denied if the matters to be tried separately are related or involve the same evidence. 5 Moore's Federal Practice, ¶ 42.03[1]; Wilemijn Houdstermaatshapj BV v. Apollo Computer, Inc., 707 F.Supp. 1429, 1433 (D. Del. 1989). A court may sever claims or issues if such a severance would be in furtherance of convenience, would avoid prejudice or would be conducive to expedition and economy. Max Daetwyler Corp. v. Input Graphics, Inc., 608 F.Supp. 1549, 1556 (E.D. Pa. 1985).

Circuit City Stores, Inc. v. Citgo Petroleum Corp., 1994 WL 483463, at *5 (E.D. Pa. Sept. 7, 1994). Holding separate trials is “the exception, not the rule, in civil cases.” Ductmate Industries, Inc. v. Famous Distribution, Inc., 2014 WL 4104810, at *6 (W.D. Pa. Aug. 19, 2014). See also Corrigan v. Methodist Hosp., 160 F.R.D. 55, 56 (E.D. Pa. 1995) (“Courts order separate trials only when ‘clearly necessary.'”) “The movant has the burden to show prejudice.” Id.

         AS America argues that the Eljer Landfill is a very small part of the Site (1.6% of the total area) and that whether AS America can be held liable for waste deposited in the Eljer Landfill depends upon multiple contingencies: 1) whether PPG disposed of waste in the Eljer Landfill or whether PPG waste deposited elsewhere migrated to the Eljer Landfill; 2) whether PPG waste represents an imminent and substantial endangerment to health or the environment; 3) whether a remedy is necessary; and 4) whether AS America is the successor to the Eljer entities which deposited waste in the Eljer Landfill, the determination of which is complicated both factually and legally. AS America contends that it would be subjected to undue burden and expense if: a) it is required to participate in expensive discovery, expert analysis and discovery, summary judgment proceedings and pretrial proceedings before the multiple contingencies have occurred; and b) it is required to participate in a lengthy and expensive trial at which the Eljer Landfill would be a minute part of a complex proceeding. Plaintiffs have responded in support of AS America's motion, arguing that it would ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.