United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE.
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. (BPRR), 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.
pending before the Court is PPG's Motion for
Reconsideration (ECF No. 426) of the Court's May 22, 2019
Memorandum Opinion and Order (ECF No. 420), which denied
PPG's Motion for a Determination that Injunctive Relief
Under RCRA is Futile as a Matter of Law (ECF No. 391)
("Motion for Determination"). For the reasons that
follow, PPG's Motion for Reconsideration will be denied.
Motion for Determination, PPG had argued that because it had
worked with the Pennsylvania Department of Environmental
Protection ("PADEP") under the Pennsylvania Land
Recycling and Environmental Remediation Standards Act
(commonly known as "Act 2") and developed a
Comprehensive Site-Wide Remedy-which it is obligated to
fulfill pursuant to a Consent Order and Agreement
("COA") signed by PPG and PADEP on April 2,
2019-any further injunctive relief that Plaintiffs could
potentially seek with respect to their RCRA claim has been
rendered futile as a matter of law.
Motion for Determination was fully briefed and a hearing was
held on April 9 and 10, 2019. As noted, on May 22, 2019, a
Memorandum Opinion and Order ("May Opinion") was
issued denying this motion without prejudice.
filed the instant motion on June 19, 2019 (ECF No. 426). This
matter has been fully briefed, including the submission of an
amicus brief by the Greater Pittsburgh Chamber of Commerce,
the Pennsylvania Chamber of Business and Industry and the
Pennsylvania Manufacturers Association.
Standard of Review
motion for reconsideration of an interlocutory order is
governed by Federal Rule of Civil Procedure 54(b). Cezair
v. JP Morgan Chase Bank N.A., Civ. Action No. 13-2928,
2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014) ("It is
well-established that the appropriate Rule under which to
file motions for reconsideration of an interlocutory order is
Rule 54(b)."). As Judge Conti recently observed:
Although "district courts have more discretion in
reconsidering interlocutory orders than in revising final
judgments, ... the law of the case doctrine guides courts to
exercise their discretion with a light hand, even with
respect to interlocutory orders, and only to grant motions
for reconsideration in 'extraordinary
circumstances.'" Foster v. Westchester Fire Ins.
Co., Civ. Action No. 09-1459, 2012 WL 2402895, at *4 n.1
(W.D. Pa. June 26, 2012) (citing In re
Anthanassious, 418 Fed.Appx. 91, 95-96, 96 n. 5 (3d Cir.
2011), and quoting In re Pharmacy Benefit Managers
Antitrust Litig., 582 F.3d 432, 438-39 (3d Cir. 2009)).
Thus, while" '[a] court has the power to revisit
prior decisions of its own or of a coordinate court in any
circumstance, ... as a rule courts should be loath to do so
in the absence of extraordinary circumstances such as where
the initial decision was clearly erroneous and would make a
manifest injustice.'" In re Pharmacy Benefit
Managers Antitrust Litig., 582 F.3d at 439 (3d Cir.
2009) (quoting Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d
Walney v. SWEPI LP, 2018 WL 4076919, at *2 (W.D. Pa.
Aug. 27, 2018). A party seeking reconsideration must show at
least one of the following: (1) an intervening change in the
controlling law; (2) the availability of new evidence that
was not available when the court granted the motion for
summary judgment; or (3) the need to correct a clear error of
law or fact or to prevent manifest injustice. Max's
Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999).
moving for reconsideration, PPG does not argue that there has
been an intervening change in the law or that new evidence is
available. Rather, it contends that the Court committed a
"clear error of law" that creates a "manifest
The May 22, 2019 Opinion
May Opinion, the Court made several determinations that are
relevant for purposes of PPG's Motion for
Reconsideration. First, it concluded that while a mandatory
injunction requiring PPG to take action "necessary"
under RCRA to prevent "imminent and substantial
endangerment to health or the environment," 42 U.S.C.
§ 6972(a)(1)(B), is an extraordinary remedy that is only
granted sparingly by the courts, Trinity Industries, Inc.
v. Chicago Bridge & Iron Co., 735 F.3d 131, 138-39
(3d Cir. 2013), PPG had the burden as the movant to
demonstrate that any injunctive relief that Plaintiffs might
request has been rendered futile.
Court also found that neither Plaintiffs nor PPG had
accurately represented the applicable legal standard.
Plaintiffs' position was that relief is warranted
whenever a plaintiff objects to a defendant's proposed
remediation while PPG contended that relief cannot be granted
once a remediation is in place unless there is a
"substantial breakdown" in the administrative
process. In contrast, the Court held that when a remedial
scheme is in place and a plaintiff presents expert evidence
calling into question whether the remedial scheme is
sufficient to address any danger to health and the
environment under RCRA, the court must evaluate this evidence
and decide the issue.
May Opinion, the Court also concluded that a remedy approved
by PADEP is not entitled to substantial deference in a RCRA
because the parties presented equally credible expert
testimony as to the effectiveness and efficiency, or lack
thereof, of the Comprehensive Site-Wide Remedy, the Court
found that PPG failed to demonstrate that all potential
injunctive relief that could be sought by Plaintiffs was
rendered futile as a result of the PADEP-approved
Comprehensive Site-Wide Remedy.
Motion for Reconsideration, PPG makes three principal
arguments. First, it contends that the Court incorrectly
interpreted the Third Circuit's decision in Trinity
Industries, Inc. v. Chicago Bridge & Iron Co., 735
F.3d 131, 138-39 (3d Cir. 2013). Specifically, PPG argues
that the Court erred by failing to preclude further
injunctive relief when a remedial scheme was in place and
improperly focusing on individual components of the
remediation as opposed to the "remediation scheme as a
whole." PPG next argues that the Court erred by failing
to give proper deference to PADEP, a state agency with
expertise in environmental matters which is authorized to
implement RCRA in Pennsylvania. Finally, because the Court
found that the experts presented by PPG and Plaintiffs gave
equally credible opinions, PPG contends that it would be
impossible for Plaintiffs to obtain a ...