TPM Wins Summary Judgment Ruling that High pH Contamination at PPG Waste Site May Present an Imminent and Substantial Endangerment to Human Health and the Environment
In 2012, PennEnvironment and Sierra Club brought a citizen suit against PPG Industries, Inc. for contamination from PPG’s disposal of waste from its glass manufacturing plant in Ford City, Pennsylvania. From 1949 to 1970, PPG disposed of waste slurry in its former sandstone quarry. PPG created three slurry lagoons that cover approximately 77 acres (“SLA”). From the 1920s to the 1970s, PPG also disposed of solid waste in another area of the Site.
For decades, the Pennsylvania Department of Environmental Protection (“PADEP”) has sought unsuccessfully to compel PPG to address the contamination at the Site. In 1971, PADEP issued a Notice of Violation to PPG concerning PPG’s discharge of industrial waste from the Site, and PADEP and PPG entered into a Stipulation and Agreement in which PPG committed to either eliminating or treating its discharges. PPG did not do so. On March 9, 2009, after decades of trying to have the contaminated discharges addressed, PADEP issued an Administrative Order (“Administrative Order”) designed to bring about regulation of the discharges under a National Pollutant Discharge Elimination System (“NPDES”) permit. In the letter accompanying the Administrative Order, PADEP described PPG’s discharges to the Allegheny River and Glade Run as “pos[ing] a significant threat to public health and the environment.”
PPG’s discharge is comprised of contaminated stormwater and leachate. Leachate is formed when uncontaminated stormwater and groundwater pass through the waste and become contaminated with the contaminants from the waste. The leachate discharges or emerges from the waste as seeps that flow or are conveyed to the Allegheny River, Glade Run, or adjacent wetlands. The leachate is contaminated with heavy metals and has a very high pH.
PPG continues to discharge from the Site without an NPDES permit. On December 10, 2014, the District Court for the Western District of Pennsylvania issued a preliminary injunction ordering PPG to file an application for an NPDES permit by March 31, 2015. PennEnvironment v. PPG Industries, Inc., 2014 WL 6982461, at *18 (W.D. Pa. 2014). The permit application is pending.
On August 31, 2015, the district court awarded summary judgment to plaintiffs on PPG’s liability for several claims. The court found that the high pH leachate from the SLA may present an imminent and substantial endangerment to human health and the environment under RCRA. The court found PPG in violation of the Clean Water Act for discharging pollutants into the Allegheny River and its tributaries without an NPDES permit. The court also found that PPG violated the administrative order issued by PADEP.
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