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Pennenvironment v. PPG Industries, Inc.

United States District Court, W.D. Pennsylvania

October 2, 2019

PENNENVIRONMENT and SIERRA CLUB, Plaintiffs,
v.
PPG INDUSTRIES, INC., BOROUGH OF FORD CITY, and BUFFALO & PITTSBURGH RAILROAD, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          PATRICIA L. DODGE 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. (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.[1]

         Presently 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.

         In its 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.

         The 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.

         PPG 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.

         I. Standard of Review

         A 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).").[2] 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 811 (1988)).

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).

         In 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 injustice."[3]

         II. The May 22, 2019 Opinion

         In its 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.

         The 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.

         In the May Opinion, the Court also concluded that a remedy approved by PADEP is not entitled to substantial deference in a RCRA case.

         Finally, 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.

         In its 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 ...


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