PENNENVIRONMENT and Sierra Club, Plaintiffs, v. PPG INDUSTRIES, INC. and Borough of Ford City, Defendants, 964 F. Supp. 2d 429

MEMORANDUM OPINION ■ AND ORDER ROBERT C. MITCHELL, United States Magistrate Judge. Plaintiffs, PennEnvironment and Sierra Club, bring this citizens suit pursuant to 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) and the Borough of Ford City (Ford City), 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 are two motions to dismiss, one filed by PPG and the other by Ford City. For the reasons that follow, the motions will be denied. Facts Plaintiffs’ complaints allege that from 1899 to 1972, PPG owned land in Cadogan and North Buffalo Townships that was used by PPG to dispose of waste from its glass manufacturing plant in Ford City. (CWA Compl. ¶ 14; RCRA Compl. ¶ 16.) From 1950 to 1970, PPG disposed of waste slurry in areas of that land that had formerly been used as a sandstone quarry.

PPG created three slurry lagoons within the quarry, which occupy an area of approximately 77 acres. (CWA Compl. ¶¶ 14-15; RCRA Compl. ¶¶ 16-17.) Those slurry lagoons are bordered by the Allegheny River to the south, Route 128 to the north, Glade Run (a tributary to the Allegheny River) to the west, and a feature that PPG terms the “Drainage Ditch” to the east.

A solid waste disposal area used by PPG from the 1920s to the 1970s, a plumbing fixture landfill used and occupied by Eljer, Inc., and four baseball fields are east of the Drainage Ditch. (CWA Compl. ¶ 16; RCRA Compl. ¶ 18.) Plaintiffs have alleged that the slurry lagoons, solid waste disposal area, plumbing fixture landfill and baseball fields, together measuring approximately 150 acres, constitute what they call the “PPG Waste Site.” (CWA Compl. ¶ 17; RCRA Compl. ¶ 19.) PPG calls it the “Ford City Site” and contends that it does not include the plumbing fixture landfill or the ballfields.

The Court will refer to it as “the Site.” The issue of whether the plumbing fixture landfill and the ballfields are included is discussed below.

On March 8, 1971, PPG and the Pennsylvania Department of Environmental Resources — now known as the Pennsylvania Department of Environmental Protection (“PADEP”) — entered into an Agreement and Stipulation concerning discharges of industrial waste from the Site into the Allegheny River. (CWA Compl. ¶ 18; RCRA Compl. ¶ 20; PPG Ex. 7.) The Agreement and Stipulation required PPG to submit a remediation plan that would either eliminate the continuing discharges or treat the discharges in perpetuity. (CWA Compl. ¶ 19; RCRA Compl. ¶ 21.) Plaintiffs note that it has now been more than 40 years since PPG signed the Agreement and Stipulation agreeing to stop or treat the discharges.

On August 1, 1972, PPG submitted a remediation plan that proposed continuing untreated discharge into the Allegheny River. (CWA Compl. ¶ 20; RCRA Compl: ¶ 22.) On October 16, 1972, PPG sold the Site to Ford City for one dollar. (CWA Compl. ¶ 21; RCRA Compl. ¶23; PPG Ex. 5.) On or about March 16, 1973, PA-DEP informed PPG that its plan was unacceptable and requested that PPG revise the plan to provide for treatment of the discharge.

On or about May 16, 1973, PPG withdrew its plan. (CWA Compl. ¶ 22; RCRA Compl. ¶24; PPG Ex. 8.) Plaintiffs allege that, since at least April 16, 1973, PPG has been required to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit for the Site and has failed to do so. (CWA Compl. ¶ 23.) PADEP informed PPG at least as early as February 21, 1992, that PPG was required to obtain a permit under the CSL, but PPG has failed to do so. (CWA Compl. ¶ 24; PPG Ex. 11.) PPG notes that, in response to the notice, it prepared a Remedial Investigation Work Plan which the Department approved in November 1992. (PPG Ex. 14.) PPG indicates that, based on the previous studies and work that had been done on the Site to mitigate risk to human health and the environment, it entered the Site into Pennsylvania’s Land Recycling Program (commonly known as “Act 2”) in 2001.

Pennsylvania’s Act 2 program allows owners and operators to “voluntarily” (i.e., without the issuance of a PADEP Order) remediaté properties under the supervision of PADEP. The study and remediation of a property under Act 2 can take place either before or after an owner/operator has formally submitted the property to the Act 2 process. Nonetheless, PADEP must approve all work plans and remediation plans and has the ability to require changes and revisions in order to assure compliance with Act 2 remediation standards.

PPG submitted the Site to the Act 2 process by filing a Notice of Intent to Remediate (“NIR”) in 2001, pursuant to which PPG committed to ensure that the Site, including the leachate from the slurry lagoon area at issue in Plaintiffs’ Complaints, met the Act 2 statutory site-specific remediation standards. (PPG Exs. 17, 18.) As part of the Act 2 process, PPG submitted a Remedial Investigation Report for the slurry lagoon area on July 31, 2001 and an Addendum on October 15, 2001. (PPG Exs. 19, 20.) PADEP approved these reports on October 19, 2001. (PPG Ex. 21.) PPG states that, in order to construct the selected remedy, in 2001, it developed and submitted to PADEP an NPDES Permit Application for Discharges Associated with Construction Activities that contained an Erosion and Sedimentation (E &

S) Control Plan to address the leachate seeps during the construction phase. (PPG Ex. 22.) However, PADEP did not approve this E & S Plan, but instead issued PPG an interim discharge permit on November 19, 2002 that required the collection and treatment of seeps resulting from the leachate from the slurry lagoon area during construction. (PPG Ex. 23.) On March 9, 2009, PADEP issued an Administrative Order (“2009 Administrative Order”), in which it 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.” (CWA Compl. ¶ 26; RCRA Compl. ¶ 27; PPG Ex. 1 at PADEP 1.) The site referred to in the 2009 Administrative Order includes at least the slurry lagoons and solid waste disposal area.

The 2009 Administrative Order states that “[precipitation which infiltrates the Slurry Lagoons and the Landfill at the Site becomes contaminated with hazardous substances.” (CWA Compl. ¶ 27; RCRA Compl. ¶ 28; PPG Ex. 2 ¶ 14.) In addition, the 2009 Administrative Order states that “[environmental assessments have found that the Slurry Lagoons at the Site are contaminated with various hazardous substances [including] antimony, arsenic, and lead.” (PPG Ex. 2 ¶ 13.) The Order stated that discharges seep out “at various locations at the Site and then flow or are conveyed into the waters of the Commonwealth,” including the Allegheny River and Glade Run.

Leachate discharged into Glade Run, in turn, is discharged into the Allegheny River. Leach-ate seeps through fissures on the cliff face of the south side of the Site and is discharged to the Allegheny River through culverts under the railroad tracks that are at the base of the cliff.

Leachate also enters the Allegheny River through “Outfall 001,” which was constructed by PPG. (CWA Compl. ¶ 28; RCRA Compl. ¶29; PPG Ex. 2 ¶ 15.) The Order also stated that the discharges, “which are pollutional and have a very high pH and contain metals and other toxic chemicals, continue unabated as of the date of this Administrative Order.” (CWA Compl. ¶ 30; RCRA Compl. ¶ 31; PPG Ex. 2 ¶ 12.) The Order required PPG to conduct “interim monitoring and reporting of the quality and quantity” of certain seeps, to “sample the receiving streams above and below the points of discharge,” and to monitor weekly both the seeps and streams for certain parameters. (PPG Ex. 2 at 4-5 ¶ A.) The Order required PPG to submit an interim abatement plan within 30 days and to submit a treatment plan within 90 days. (PPG Ex. 2 at 5 ¶¶ C, D.) Subparagraph (ii) of paragraph D required PPG to identify in its Treatment Plan, inter alia, “the necessary NPDES permití

s) for the authorization of the discharges associated with the collection and treatment system” and to “provide a

schedule for applying for the necessary permits.” (CWA Compl. ¶¶ 31-33.) On July 2, 2009, PADEP approved PPG’s May 26, 2009 Addendum to Interim Abatement Plan (the “July 2 Addendum”), such that PPG was directed to: collect wastewater from the Site and treat that wastewater in a treatment system that will be designed to address any accumulated sludge that may result from treatment and neutralization. PPG shall install, operate, and maintain the collection and treatment system in accordance with the requirements of Attachment A.

In addition, PPG shall design the collection system using pipes, therefore, avoiding the collection and treatment of uncontaminated storm water runoff. Finally, PPG shall submit a final design before construction commences. This will allow the Department to review the final plan. (CWA Compl. ¶ 34; Pis.’ Br. (ECF No. 43) Ex. 1.) Attachment A to the July 2 Addendum required that “PPG shall monitor the discharges from any temporary system” and comply with certain effluent limitations in accordance with the table listed therein. (ECF No. 43 Ex. 1 Attach.

A.) Plaintiffs allege that, based on the monthly Effluent Monitoring Data reports submitted by PPG to PADEP for the period February 2010 through December 2011, they have identified 162 discharge violations and 33 reporting violations. (CWA Compl. ¶ 31 & Exs. 2, 3.) Paragraph 3 of Attachment A of the July 2 Addendum states that “[n]o untreated or ineffectively treated wastewaters shall be discharged into the waters of the Commonwealth____” Under the CSL, “waters of the Commonwealth” includes “any and all rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds, springs and all other bodies or channels of conveyance of surface and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth.” 35 P.S. § 691.1. (CWA Compl. ¶ 34.) In addition, Plaintiffs allege that the discharge from Outfall 001 is being treated only for pH and not any other pollutant.

Thus, they allege that PPG is discharging untreated or ineffectively treated wastewaters into the Allegheny River. (CWA Compl. ¶ 35.) In June 2009, PPG submitted a Treatment Plan (PPG Ex. 28), which PADEP approved on November 9, 2011. (CWA Compl. ¶ 36; PPG Ex. 30). PPG notes that the Treatment Plan provided for the submission to PADEP of a Treatment Plan Report evaluating potential remedial strategies for the collection and treatment of seeps discharging from the Site and implementation of the selected remedy, once approved, on a schedule.

PPG submitted this report in December 2012. (PPG Ex. 31.) PPG states that the report “is currently under review by PADEP.” (PPG Br. (ECF No. 25) at 11.) Plaintiffs allege that PPG’s Treatment Plan fails to provide a

schedule for the application for NPDES permits and, based on the monthly progress reports submitted by PPG. beginning on April 1, 2009, through at least January 5, 2012, PPG took no steps to apply for such permits. (CWA Compl. ¶ 33.) Procedural History On January 13, 2012, Plaintiffs gave notice of their intent to file suit to the Administrator of the United States Environmental Protection Agency (EPA), the PADEP and Defendants as required by the CWA, CSL and RCRA. 33 U.S.C. § 1365(b)(1)(A); 35 P.S. § 691.601(e); 42 U.S.C. § 6972(b)(2)(A). (CWA Compl. ¶4 & Ex. 1; RCRA Compl. ¶ 4 & Ex. 1.) On March 20, 2012, Plaintiffs filed a complaint against Defendants under the CWA and the CSL (the “CWA Complaint”).

The case was docketed at Civ. A. No. 12-342. Count I alleges that that PPG has unlawfully discharged pollutants into navigable waters without an NPDES permit and continues to do so in violation of Sections 301(

a) and 402 of the CWA, 33 U.S.C. §§ 1311(a), 1342. Count II alleges that PPG has violated and continues to violate sections 301(

a) and 402(p)(2)(B), 33 U.S.C. §§ 1311(a), 1342(p)(2)(B), by discharging storm water associated with industrial activity without a permit authorizing such discharge. Count III alleges that PPG has violated and continues to violate Sections 301 and 307 of the CSL, 35 P.S. §§ 691.301, 691.307, by discharging industrial waste into the Allegheny River, Glade Run, and groundwater associated with the Site without authorization or a permit obtained from PAJDEP, which constitutes a nuisance under

Section 307(c). Count IV alleges that PPG has violated and continues to violate

Section 401 of the CSL, 35 P.S. § 691.401, by discharging pollutants and discharging waste containing high levels of pH, into the Allegheny River, Glade Run, and groundwater without a permit issued by PADEP authorizing such discharges. Count V alleges that PPG has violated the CWA in that the Treatment Plan it submitted in June 2009 fails to provide a

schedule for the application for NPDES permits and, based on the monthly progress reports submitted by PPG beginning on April 1, 2009, through at least January 5, 2012, PPG took no steps to apply for such permits and Plaintiffs allege, on information and belief, that PPG has failed to provide a

schedule for the application of NPDES permits and has taken no steps to apply for such permits. Count VI alleges that PPG’s acts as alleged in Count V also violate

section 611 of the CSL, 35 P.S. § 691.611. Count VII alleges that PPG. has discharged, and continues to discharge, untreated and ineffectively treated wastewater, in violation of the July 2 Addendum, and Count VIII alleges that these acts also violate

section 611 of the CSL. Count IX alleges that PPG has violated the CWA by committing 162 discharge violations between February 2010 and December 2011, in violation of the 2009 Administrative Order, and Count X alleges that these acts also violate

section 611 of the CSL. Count XI alleges that PPG has violated the CWA by committing 33 reporting violations between February 2010 and December 2011, in violation of the 2009 Administrative Order, and Count XII alleges that these acts also violate

section 611 of the CSL. On April 20, 2012, Plaintiffs filed another complaint against Defendants under the RCRA (the “RCRA Complaint”). They allege that PPG is a generator and/or transporter of the solid or hazardous waste at the Site, as well as an owner and/or operator of the site, and has contributed to the past or present handling, storage, treatment, transportation, or disposal of the solid or hazardous waste at the Site, thereby presenting an imminent and substantial endangerment to health or the environment. This case was docketed at Civ. A. No. 12-527.

On May 25, 2012, Plaintiffs filed a motion to consolidate the two cases (ECF No. 11). On May 29, 2012, an order was entered granting this motion and consolidating the cases at No. 12-342 (ECF No. 12). On February 28, 2013, PPG filed a motion to dismiss the complaints (ECF No. 24), accompanied by. a brief and several volumes of exhibits (ECF Nos. 25-28). Ford City then filed a motion to dismiss which incorporated the arguments made by PPG in its motion and also argued that the RCRA Complaint contained no allegations that it had any involvement with the waste at issue (ECF No. 29).

On March 20, 2013, Plaintiffs moved for an extension of time in which to reply (ECF No. 33), contending that PPG’s motion, the first and lengthiest argument of which concerned the doctrine of primary jurisdiction, was either: 1) a motion for

summary judgment for which they needed to take discovery in order to properly respond; or 2) a motion under Rule 12(b)(1) for which they would need to conduct discovery to respond to factual challenges to the Court’s subject matter jurisdiction; in the alternative they argued that PPG should be directed to re-file its motion under Rule 12(b)(6) without submitting matters and arguments outside the pleadings. PPG filed a response to this motion on April 2, 2013 (ECF No. 37) and Plaintiffs filed a reply brief on April 9, 2013 (ECF No. 38). On April 10, 2013, the Court entered an order stating that: IT IS HEREBY ORDERED that the motions to dismiss will not be treated as motions for

summary judgment or motions challenging the Court’s subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), but will be treated as motions pursuant to Federal Rule of Civil Procedure 12(b)(6) and Plaintiffs do not need to conduct discovery in order to respond to the substance of the motions under the appropriate standard of review; IT IS FURTHER ORDERED that some of materials submitted by PPG will be considered because they are public records which indicate that the PADEP has been involved in the development and implementation of procedures for the remediation of the Ford City Site at issue in this case, but the substance of the documents will not be considered to establish the details of the remediation or the extent to which it has progressed or succeeded, and other materials which are not public records will not be considered at all. (ECF No. 39.) On April 24, 2013, Plaintiffs filed their response to the motion to dismiss (ECF No. 43) and on May 14, 2013, PPG filed a reply brief (ECF No. 45).

Standard of Review The Supreme Court has issued two decisions that pertain to the standard of review for a motion to dismiss for failure to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). The Court held that a complaint must include factual allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “[WJithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice’ but also the ‘grounds’ on which the claim rest's.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir.2008).

In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;” “labels and conclusions;” and “ ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at 679,129 S.Ct. 1937. District courts are required to engage in a two

part inquiry: First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions.... Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show the plaintiff has a “plausible claim for relief.” ... In other words, a complaint must do more than allege the plaintiffs entitlement to relief. A complaint has to “show” such an entitlement with its facts. Fowler v.

UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009) (citations omitted). “Although a district court may not consider matters extraneous to the pleadings, ‘a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for

summary judgment.’ ” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.2002) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)). In addition, “[c]ourts ruling on Rule 12(b)(6) motions may take judicial notice of public records.” Anspach ex rel. Anspach v. City of Phila., 503 F.3d 256, 273 n. 11 (3d Cir.2007).

Plaintiffs have agreed that the following PPG exhibits are either integral to their allegations or are public records: Exs. 1, 2, 5, 7, 8, 11, 14, 21, 23, 27, 28, 29 (progress reports through January 2012), 30 and 32. (ECF No. 43 at 3 n. 4.) Pursuant to the case law, Plaintiffs’ agreement and this Court’s order of April 10, 2013, the Court will take judicial notice of those documents submitted by PPG that are integral to Plaintiffs’ claims or that constitute public records which indicate that PADEP has been involved in the development and implementation of procedures for the remediation of the Site at issue in this case, but the substance of the documents will not be considered to establish the details of the remediation or the extent to which it has progressed or succeeded, and other materials which are not integral to their claims and are not public records will not be considered at all.

Individual discussion of these documents will occur as needed below. However, it is noted that PPG’s final ground for dismissal concerns the issue of standing. “A motion to dismiss for want to standing is ... properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.” Ballentine v. United States, 486 F.3d 806, 810 (3d Cir.2007) (citations omitted).

The first issue a court must decide in reviewing a Rule 12(b)(1) motion is whether the challenge to the court’s subject matter jurisdiction is a facial or factual attack. “In reviewing a facial attack, the court must only consider the allegations of the complaint and documents attached thereto, in the light most favorable to the plaintiff. In reviewing a factual attack, the court may consider evidence outside the pleadings.” Gould Elec.,- Inc. v.

United States, 220 F.3d 169, 176 (3d Cir.2000) (footnote and citations omitted). “Facial attacks ... contest the sufficiency of the pleadings, and the trial court must accept the complaint’s allegations as true.” Turicentro, S.A v. American Airlines,. Inc., 303 F.3d 293, 300 n. 4 (3d Cir.2002) (citation omitted). Plaintiffs assert that PPG only challenges the legal sufficiency of the complaints and thus its attack is a facial one for which the Court must consider the allegations of the complaint as true.

PPG contends that “resolution of the matter turns on the factual determination of whether PADEP has primary jurisdiction over the issues alleged by Plaintiffs with respect to [the Site].” (ECF No. 25 at 13-14.) PPG has muddied the waters by confusing standing with primary jurisdiction (which, as explained below, is not a jurisdictional issue). PPG’s attack on Plaintiffs’ standing to maintain this suit is a facial one which does not require reference to materials outside the complaint.

The Court of Appeals has explained that: In evaluating whether a complaint adequately pleads the elements of standing, courts apply the standard of reviewing a complaint pursuant to a Rule 12(b)(6) motion to dismiss for failure to state a claim: “Court[s] must accept as true all material allegations set forth in the complaint, and must construe those facts in favor of the nonmoving party.” Ballentine, 486 F.3d at 810 (citing Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)); see also Baldwin v. Univ. of Pittsburgh Med.

Ctr., 636 F.3d 69, 73 (3d Cir.2011) (“A dismissal for lack of statutory standing is effectively the same as a dismissal for failure to state a claim.”). The Supreme Court most recently explained this standard in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct., 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009): “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 129 S.Ct. at 1949 .(quoting Twombly, 550 U.S. at 570,127 S.Ct. 1955)....

While the plausibility standard does not impose a “probability requirement,” it does demand “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Pursuant to Iqbal’s clarification of the plausibility determination as a “context-specific task that requires the reviewing court to draw on its judicial Experience and common sense,” id., this Court has found that “[s]ome claims require more factual explication than others ‘to state a plausible claim for relief.” West Penn Allegheny Health Sys., Inc. v.

UPMC, 627 F.3d 85, 98 (3d Cir.2010). We have reasoned that, “[f]or example, it generally takes fewer factual allegations to state a claim for simple battery than to state a claim for antitrust conspiracy.” Id. “A complaint has to ‘show1 such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009). With respect to 12(b)(1) motions in particular, “[t]he plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely consistent with such a right.” Stalley v.

Catholic Health 'Initiatives, 509 F.3d 517, 521 (8th Cir.2007). In re Sobering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243-44 (3d Cir.2012).

Defendants argue that: 1) Counts I-VIII of the CWA Complaint and the imminent and substantial danger claim in the RCRA Complaint should be dismissed or stayed based on the doctrine of primary jurisdiction abstention; 2) Counts I, II, III, TV, VII and VIII should be dismissed to the extent that they encompass NPDES permitting requirements for nonpoint sources, which are not within the scope of CWA citizen suits; 3) Counts I, II, III, IV, VII and VIII should be dismissed to the extent they allege a failure to obtain a CWA permit for a point source discharge because PPG does have authorization to discharge through Outfall 001 (and PPG did not have to obtain a permit other than for Outfall 001 because Ford City was the owner or operator of the Site at all relevant times, and the CWA, enacted in 1972, cannot be applied retroactively) and PPG is complying with the 2009 Administrative Order by treating for pH (and to the extent Plaintiffs are challenging the treatment of other pollutants, they are not covered by the Order and thus Plaintiffs are attacking PADEP’s judgment); 4) Counts V and VI must be dismissed because CWA allows for citizen suits to enforce effluent standards and limitations, not arising out of failure to contain a

schedule for the application of NPDES permits and, in any event, the Plan did contain a

schedule and PADEP approved it; 5) Counts IX and X must be dismissed for failure to comply with mandatory notice requirements in that there is no list of discharge violations for July 2010 or November 2010; 6) Counts IX and X must also be dismissed because they concern only past violations, not ongoing ones; 7) Counts XI and XII must be dismissed because they concern only past reporting violations, not ongoing ones; 8) the RCRA Complaint fails to state an imminent and substantial danger claim as to plumbing fixture landfill or the baseball fields (PPG had no involvement with them); and 9) Plaintiffs lack standing to pursue RCRA and CWA claims because citizen suits do not automatically confer standing and groups do not have unique, particularized interest beyond that possessed by the public at large.

Ford City incorporates PPG’s arguments and also argues that the RCRA Complaint contains no allegations that it had any involvement, let alone the active involvement required for liability, with the waste at issue.

Plaintiffs respond that: 1) the doctrine of primary jurisdiction does not apply; 2) Counts I and II are properly asserted under the CWA which regulates only point source discharges and Counts III, IV, VTI and VIII are properly asserted under the CSL which regulates both point source and nonpoint source discharges; 3) Plaintiffs do not complain of only one point source discharge (Outfall 001), but also allege discharges from the “Drainage Ditch,” culverts and seeps, all of which are point sources, and these allegations are sufficient to withstand a motion to dismiss, Plaintiffs are alleging that PPG must have an NPDES permit to discharge pollutants through each point source on the Site, not just for Outfall 001, the 2009 Administrative Order is not an NPDES permit or a substitute for one, PPG’s argument that it is not the owner or operator of the Site contradicts the allegations of the complaints and documents of record (and under the CWA, PPG can be held liable for discharging pollutants whether it owns or operates the Site or not), Plaintiffs are seeking to hold PPG liable for discharges after the CWA became effective, and whether PPG is complying with the 2009 Administrative Order is a matter in dispute; 4) Counts V and VI arise out of the 2009 Administrative Order and are not moot because nothing in PADEP’s November 9, 2011 letter (assuming it can be considered) substantively addresses PPG’s proposed Treatment Plan; 5) Plaintiffs provided adequate notice of the violations in Counts IX and X and PPG’s contention to the contrary cites a few typographical errors that in no way prevented PPG from being able to identify the relevant violations; 6) Counts IX and X properly allege ongoing discharge violations; 7) Counts XI and XII properly allege ongoing reporting violations; 8) the RCRA Complaint extends to the full property, including the ballfields and the plumbing fixture landfill area; and 9) Plaintiffs have properly pled that they have standing, both as organizations which have suffered injury from PPG’s pollution and as representatives of thousands of members who reside in the vicinity of, or own property or recreate in, on or near the waters of the Allegheny River affected by the discharge of pollutants from the Site.

Finally, with respect to Ford City’s motion to dismiss, Plaintiffs respond that they do not state any causes of action against Ford City, but it is named as an indispensable party pursuant to Federal Rule of Civil Procedure 19(

a) based on its status as owner of the Site.

In its reply brief, PPG argues that: 1) Plaintiffs cannot allege that leachate seeps and uncontrolled storm water discharges are point source discharges, because this is a legal issue and under the law, these discharges are nonpoint source discharges for which no permit is necessary, and requiring a permit to address PPG’s historical disposal or industrial activities would constitute retroactive application of the CWA; 2) Counts I-IV alleged only one point source, Outfall 001, and since this discharge has been mandated by PADEP’s 2009 Order and July 2 Addendum, it is “permitted” or “authorized” within the meaning of the CWA, and even if the Court determined that PPG is liable for failing to have a formal NPDES permit, the only relief the Court could provide would be either for PPG to obtain a permit — which PADEP has already done — or for PPG to eliminate the discharges from the Site — which would conflict with PA-DEP’s order; 3) Plaintiffs cannot allege that there are “ongoing violations” as they have cited only discrete instances of effluent exceedances, and there are no ongoing reporting violations; 4) with respect to the Eljer landfill, Plaintiffs have failed to allege that PPG handled, stored, treated, transported, or disposed of solid waste or hazardous waste in these areas; thus the RCRA claims are missing this essential element; 5) under controlling Third Circuit precedent, Plaintiffs lack both representational standing, particularly because they have not alleged how a favorable decision would redress their individual members’ alleged injuries, and standing in their own right, because they allege only an injury to their organizational missions, which is insufficient, nor can they establish “informational” injury based on reports that PPG submitted a few days late to PADEP; and 6) Plaintiffs falsely contend that the records to which PPG refers are not public records and erroneously argue about subject matter jurisdiction when PPG is contending that the Court should decline to exercise its jurisdiction based on the doctrine of primary jurisdiction, and their arguments fail because PADEP is actively involved in enforcement and oversight of the Site.

Standing As noted above, the issue of standing challenges the Court’s subject matter jurisdiction. Ballentine, 486 F.3d at 810. Therefore, this issue must be addressed first. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93-102, 118 S.Ct. 1003,140 L.Ed.2d 210 (1998). The Supreme Court has held that: In every federal case, the party bringing the suit must establish standing to prosecute the action. “In essence the question of standing is whether the litigant, is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v.

Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The standing requirement is born partly of “ ‘an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.’” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178-1179 (C.A.D.C.1982) (Bork, J., concurring)). Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004).

The Court explained that: our standing jurisprudence contains two strands:

Article III standing, which enforces the Constitution’s ease-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); and prudential standing, which embodies “judicially self-imposed limits on the exercise of federal jurisdiction,” Allen, 468 U.S. at 751, 104 S.Ct. 3315. The

Article III limitations are familiar: The plaintiff must show that the conduct of which he complains has caused him to suffer an “injury in fact” that a favorable judgment will redress. See Lujan, 504 U.S. at 560-561,112 S.Ct. 2130.

Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses “the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiffs complaint fall within the zone of interests protected by the law invoked.” Allen, 468 U.S. at 751, 104 S.Ct. 3315. See also Secretary of State of Md. v. Joseph H.

Munson Co., 467 U.S. 947, 955-956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). “Without such limitations — closely related to Art. Ill concerns but essentially matters of judicial self-governance — the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” Warth, 422 U.S. at 500, 95 S.Ct. 2197. Id. at 11-12, 124 S.Ct. 2301.

An association may have standing in its own right or as a representative of its members who have been injured in fact. Pennsylvania Psychiatric Society v. Green Spring Health Servs., Inc., 280 F.3d 278, 283 (3d Cir.2002) (citations omitted).

However, the manner in which standing must be supported depends upon the stage of the litigation at which the issue is raised: At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” [Lujan v.] National Wildlife Federation, 497 U.S. [871], 889, 110 S.Ct. [3177,] 3189[, 111 L.Ed.2d 695 (1990) ]. In response to a

summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed. Rule Civ.Proc. 56(e), which for purposes of the

summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be “supported adequately by the evidence adduced at trial.” Gladstone [Realtors v. Village of Bellwood], 441 U.S. [91], at 115, n. 31, 99 S.Ct. [1601,] 1616 n. 31[, 60 L.Ed.2d 66 (1979) ]. Defenders of Wildlife, 504 U.S. at-561;-112 S.Ct. 2130. In a case involving an association (FOE) that brought a citizen suit under the CWA alleging noncompliance with an NPDES permit, the Supreme Court explained that: In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), we held that, to satisfy

Article Ill’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (

a) concrete and particularized and (

b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v.

Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Friends of the Earth, Inc. 'v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). “The relevant showing for purposes of

Article III standing ... is not injury to the environment but injury to the plaintiff.” Id. at 181, 120 S.Ct. 693. In addition, “a plaintiff must demonstrate standing separately for each form of relief sought.” Id. at 185, 120 S.Ct. 693. The Court observed that “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Id. at 183, 120 S.Ct. 693 (citations omitted).

The Court held that FOE demonstrated on a fully developed record that it had standing to seek both injunctive relief and civil penalties when it submitted affidavits from various members indicating that they used the North Tyger River and the area around it for fishing, camping, swimming, picnicking and other activities, but could not do so any longer because of Laidlaw’s discharges into the river. Id. at 181-84, 120 S.Ct. 693. See also Interfaith Cmty. Org. v.

Honeywell Int’l, Inc., 399 F.3d 248, 254 (3d Cir.2005) (although a plaintiff must have suffered an invasion of a concrete and particularized legally protected interest, “an identifiable trifle is enough.”) PPG cites Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir.1997).

In that case, the Court of Appeals held that the plaintiff (PIRG) did not meet the standing requirement when it alleged that its members’ enjoyment of the Delaware River was lessened because they “knew” that it had been polluted, noting that this was a “generalized grievance” that was not a judicially cognizable injury. Id. at 120-21.

Plaintiffs respond that Magnesium Elektron: 1) is not good law because it was implicitly overruled by the Supreme Court’s holding in Laidlaw that the relevant issue is injury to the plaintiff, not the environment; and 2) was a case about representational standing, but the Court must first determine whether they have standing in their own right, which they have met by citing their members’ alleged injuries based on discharges that are alleged to cause serious harm to the environment.

Plaintiffs have demonstrated that Magnesium Elektron is distinguishable from this case, because they are not merely alleging that their members’ enjoyment of the environment has been lessened because they “know” that it has been polluted. In addition, that case was decided at the post-trial stage, not upon a motion to dismiss.

PennEnvironment has approximately 15,000 members and Sierra Club has 24,000 members living in Pennsylvania, many of whom reside in counties that border the Allegheny River, and members of both groups “reside in the vicinity of, or own property or recreate in, on, or near the waters of the Allegheny River affected by the discharge of pollutants from the PPG Waste Site.” (CWA Compl. ¶¶ 7-9.) Plaintiffs have alleged that “PPG’s discharge of pollutants ... has adversely affected, is adversely affecting, and will continue adversely to affect, the health, economic, recreational, aesthetic, and environmental interests of PennEnvironment and the Sierra Club’s members” and that their “ability to protect and improve the waters of Pennsylvania requires accurate and complete information regarding the discharge of pollutants,” and PPG’s actions interfere with their efforts. (CWA Compl. ¶¶ 9, 10.) As Plaintiffs note, the allegations of the CWA Complaint are nearly identical to allegations made (by the same lead counsel) and found to be sufficient in the Laidlaw case. (ECF No. 43 Ex. 11 ¶¶8, 9.) They contend that there is “nothing ‘improbable’ about the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” Laidlaw, 528 U.S. at 184, 120 S.Ct. 693.

See also Building & Constr. Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 146 (2d Cir.2006) (accepting similar allegations as sufficient for standing purposes).

In addition, Plaintiffs allege in the RCRA Complaint that PPG’s discharges may present an imminent and substantial endangerment to human health and the environment, citing PADEP’s 2009 Administrative Order which details the “significant threat to public health and the environment.” (RCRA Compl. ¶ 27.) The complaints cite the Order’s statement that “[t]he industrial waste discharges from the Site, which are pollutional and have a very high pH and contain metals and other toxic chemicals, continue unabated as of the date of this Administrative Order.” (RCRA Compl. ¶ 31; CWA Compl. ¶ 30.) The complaints specify, inter alia, that leachate seeps from PPG’s slurry lagoons “at various locations” into the Allegheny River and Glade Run, including “through fissures on the cliff face on the south side of the PPG Waste Site” and “through an outfall constructed by PPG.” (RCRA Compl. ¶ 29; CWA Compl. ¶ 28.) As a consequence, Plaintiffs allege that PPG’s pollution “presents] or may present an imminent and substantial endangerment to human health and/or the environment due to the level of contaminants including arsenic, chromium, lead, manganese, copper, zinc, mercury, antimony, barium, beryllium, iron, vanadium, aluminum, total dissolved solids or salts, and semi-volatile organic compounds.” (RCRA Compl. ¶ 32.) They contend that these allegations are more than sufficient to confer standing.

See Village of Riverdale v. 138th Street Joint Venture, 527 F.Supp.2d 760, 765 (N.D.I11.2007) (finding sufficient the allegations that the defendants’ “activities have caused, and continue to cause, the release of solid wastes to air, soils, subsurface soils, sediments, surface water and groundwater and physical structures at the Subject Property, which release presents an imminent and substantial endangerment to health or the environment, within the meaning of 42 U.S.C. § 6972(a)(1)(B).”) Plaintiffs argue that they do not need to identify specific members who have been injured at this stage of the proceedings.

See Building & Constr. Trades Council, 448 F.3d at 145 (there is no authority for the proposition that an association must “name names” in a complaint in order properly to allege injury in fact to its members.) They further contend that they have adequately pled the relief they seek: an injunction against unpermitted discharges (CWA Compl. at 23 ¶ C), remediation of the contaminated sediments in the Allegheny River and Glade Run (id. ¶ D; RCRA Compl. at 10 ¶ C), remediation of the Site (id. ¶ B), an injunction against contamination of surface water and groundwater (id. ¶¶ D-

E) and civil penalties (CWA Compl. at 23 ¶ E.) They note that this is more than was pled in Village of Riverdale, 527 F.Supp.2d at 767, which was held to be sufficient. Plaintiffs contend that they not just alleged a generalized grievance that inures to the benefit of all citizens, but have instead alleged specific and concrete ways in which PPG’s CWA violations interfere with their particular interests. Specifically, they have alleged that PPG’s discharges have interfered with their efforts to conserve, protect and restore Pennsylvania’s waterways.

Moreover, they allege that PPG’s failure to obtain permits and comply with those permits’ discharge, monitoring and reporting violations: “interfere with the efforts of PennEnvironment and the Sierra Club to assess the compliance status of Pennsylvania dischargers with water pollution control laws and report such status to their members”; “interfere with the efforts of [Plaintiffs] to propose legislation to amend the Clean Water Act or the Clean Streams Law”; and interfere with Plaintiffs’ efforts to “bring litigation to prevent violations by PPG and thereby protect the waters of the Allegheny River affected by the discharge from the PPG Waste Site.” (CWA Compl. ¶ 10.) They argue that this kind of informational injury has been recognized by various courts.

See American Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 546 (6th Cir.2004) (“the injury alleged is not that the defendants are merely failing to obey the law, it is that they are disobeying the law in failing to provide information that the plaintiffs desire and allegedly need. This is all that plaintiffs should have to allege to demonstrate informational standing where Congress has provided a broad right of action to vindicate that informational right.”); Sierra Club v.

Simkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir. 1988) (“As a result of [CWA monitoring and reporting] violations, information on any harmful level of pollutants ... during this time period is forever lost to environmental planners and policymakers and those who might undertake to remedy the effects of any pollution.”) PPG responds that these alleged “informational injuries” appear to arise out of instances in which it submitted reports to PADEP a few days after they were due (CWA Compl.

Ex. 3), making them both “implausible” under Iqbal and unredressable in any event, since the reports have in fact been submitted. However, PPG cites no authority in support of this “de minimis injury” argument. Plaintiffs have alleged that PPG consistently fails to submit its reports on time, as required by the July 2 Addendum, and this is sufficient to confer standing for this informational injury. As Plaintiffs note, they have made allegations found sufficient in other cases to establish their standing, both individually and as representatives of their members.

PPG has not cited a case in which environmental organizations such as PennEnvironment and Sierra Club were deemed to lack standing in situations comparable to this case. Rather, the cases cited by PPG either were decided on motions for

summary judgment or merely state general legal principles but do not address circumstances such as those presented in this case. Therefore, the motion to dismiss the complaints for lack of standing is denied. Primary Jurisdiction Defendants argue that Counts I-VIII of the CWA Complaint and the imminent and substantial danger claim of the RCRA Complaint should be dismissed or stayed based on the doctrine of primary jurisdiction. Plaintiffs deny that the doctrine applies. Despite the name, “primary jurisdiction” is not a doctrine which would deprive a federal court of jurisdiction over a case.

Rather, it is: a doctrine specifically applicable to claims properly cognizable in court that contain some issue within the special competence of an administrative agency. It requires the court to enable a “referral” to the agency, staying further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling. Referral of the issue to the administrative agency does not deprive the court of jurisdiction; it has discretion either to retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice. Reiter v.

Cooper, 507 U.S. 258, 268-69, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (footnote and citations omitted). The Court of Appeals has noted that courts have applied a four-factor test for determining whether a court should abstain on primary jurisdiction grounds:

(1) Whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise;

(2) Whether the question at issue is particularly within the agency’s discretion;

(3) Whether there exists a substantial danger of inconsistent rulings; and

(4) Whether a prior application to the agency has been made. Raritan Baykeeper v. NL Indus., Inc., 660 F.3d 686, 691 (3d Cir.2011) (quoting Global Naps, Inc. v. Bell Atlantic-N.J., 287 F.Supp.2d 532, 549 (D.N.J.2003)). In Bay-keeper, the district court abstained from a citizen suit brought to bring about the remediation of contaminated sediments in the Raritan River based on the involvement and expertise of the New Jersey Department of Environmental Protection (NJDEP). The court relied on both the primary jurisdiction doctrine and abstention pursuant to Burford v.

Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed, 1424 (1943). The Court of Appeals first noted that both RCRA and CWA contain statutory provisions precluding citizen suits if the Administrator of the EPA or .a state is “diligently prosecuting an enforcement action through formal proceedings.” 660 F.3d at 690-91 (citing 42 U.S.C. § 6972(b)(2)(B) & (

C) and 33 U.S.C. § 1365(b)(1)(B)). The parties agreed that none of the statutory exceptions to citizen suits applied.

The court then held that the district court erred in abstaining under the primary jurisdiction doctrine because: 1) while NJDEP had expertise in environmental matters, federal courts are nonetheless competent to decide such cases, as evidenced by Congress’s enactment of environmental statutes authorizing citizen suits in federal court; 2) neither the RCRA nor the CWA charged NJDEP with enforcing federal environmental laws; 3) there was minimal risk of inconsistent rulings, particularly given that NJDEP’s most recent ruling concerning the topic was issued in 2004; and 4) application had previously been made to NJDEP and this factor favored the defendants, but this factor alone was insufficient to outweigh the others that disfavored abstention on primary jurisdiction grounds.

Id. at 691-92. The court noted that its decision was: consistent with the decisions of our sister circuits. The First Circuit explained that federal courts must “exercise great caution in considering abstention,” and that “the circumstances justifying abstention will be exceedingly rare,” because declining to . hear a case for a reason not enumerated in the RCRA “would substitute our judgment for that of Congress about the correct balance between respect for state administrative processes and the need for consistent and timely enforcement of RCRA.” Chi-co Serv. Station, Inc. [v. Sol P.R.

Ltd.], 633 F.3d [20,] 31, 32 [(1st Cir.2011)]. Similarly, the Seventh Circuit observed that, while “there may be room for applying the doctrines of abstention or primary jurisdiction ... in cases in which a state has a formal administrative proceeding in progress that the citizens’ suit would disrupt,” abstention in RCRA ordinarily would amount to “an end run around the RCRA.” PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir.1998).

The same logic also applies to CWA actions, since that statute similarly provides for citizen suits except under specific, enumerated circumstances, none of which apply here. Id. at 694-95. Although PPG acknowledges the standards set forth in Baykeeper, it does not explain why the case is distinguishable. As a preliminary matter, it does not argue that any of the statutory provisions apply.

With respect to the first factor, PPG argues that this case presents “highly technical issues that would be better addressed by the PADEP, specifically: determining the appropriate treatment technology for the collection and treatment of the leachate seeps, the extent of contamination at the Ford City Site, its risk to human health and the environment, the appropriate remediation, the acceptable level of any remaining contamination, the issuance of a NPDES permit and the setting of effluent limits. (ECF No. 25 at 25.) Plaintiffs respond that PPG significantly overstates what the Court will be required to do in adjudicating their claims.

They state that the CWA Complaint will not require the Court to issue an NPDES permit, set effluent limits, or independently determine appropriate treatment technology. Instead, the Court will be required to determine whether PPG has violated the CWA and the CSL, to declare that PPG has committed these violations and enjoin PPG from discharging pollutants without a permit.

Plaintiffs indicate that, with respect to the RCRA Complaint, the Court will be required to determine whether the Site presents an “imminent and substantial endangerment” under the statute, which will require an assessment of the contamination at the Site, and the Court may also be asked to determine the appropriate remediation and whether the remaining contamination is acceptable. However, Plaintiffs note that other courts have been competent to make such findings based on the expert testimony and evidence offered by the parties and order necessary relief. See, e.g., Interfaith Cmty. Org. v.

Honeywell Int’l, Inc., 263 F.Supp.2d 796 (D.N.J. 2003) (assessing expert testimony and making factual findings and legal conclusions, including as to site remediation, under RCRA), affd, 399 F.3d 248, 267 (3d Cir.2005) (rejecting Honeywell’s argument “that the District Court lacked the ability to ‘appreciate the inherent complexity and difficulty’ of making ‘sound’ remedial decisions”); see also O’Leary v.

Moyer’s Landfill, Inc., 523 F.Supp. 642, 647 (E.D.Pa.1981) (rejecting primary jurisdiction argument against CWA and RCRA citizen suit and holding: “[n]or are the problems central to this litigation beyond the ordinary competence of a court, especially given the helpful participation as witnesses of experts from the relevant agencies”). Plaintiffs further contend that, pursuant to Baykeeper, delineating the specific relief they seek is not necessary in evaluating this factor: “While NJDEP has expertise in environmental matters, federal courts are nonetheless competent to decide cases such as the one before us.

Congress decided as much when it wrote the RCRA and CWA to authorize citizen suits in federal courts.” 660 F.3d at 691. See also Maine People’s Alliance v. Mallinckrodt, Inc., 471 F.3d 277, 293 (1st Cir.2006) (“[Fjederal courts have proven, over time, that they are equipped to adjudicate individual cases, regardless of the complexity of the issues involved”); Interfaith Cmty. Org. v.

PPG Indus., Inc., 702 F.Supp.2d 295, 311 (D.N.J.2010) (RCRA citizen suit in which the court held “Congress clearly contemplated that the environmental issues posed here are within the competency of the courts when it created a citizen suit provision”); Merry v. Westinghouse Elec. Corp., 697 F.Supp. 180, 183 (M.D.Pa.1988) (statutory enforcement schemes do not pose questions beyond normal competency of courts). As for the CSL, it also has an explicit citizen suit enforcement provision, 35 P.S. § 691.601(c).

PPG argues that the EPA has delegated the primary administration and enforcement of RCRA and the CWA NPDES program to PADEP (through the CSL) for matters arising under these statutes in Pennsylvania. In addition, it notes that the EPA (Region 3) and PADEP have entered into a Memorandum of Understanding whereby the EPA gives PADEP the discretion to cooperatively implement RCRA’s corrective action clean up requirements at sites through Act 2. (PPG Ex. 32.) Thus, PPG contends that PADEP is charged with enforcing these statutes such that this matter is “particularly” within the discretion of PADEP.

Plaintiffs respond that the Court of Appeals held in Baykeeper that: Although NJDEP generally has discretion over environmental matters, neither the RCRA nor the CWA charges NJDEP with enforcing those particular statutes. Indeed, each statute authorizes federal courts to address environmental issues. Accordingly, this matter is not particularly within the discretion of NJDEP. 660 F.3d at 691-92. NJDEP, just like PADEP, has approval from the EPA to participate in the NPDES program. 47 Fed.Reg. 17331 (Apr. 22,1982).

PPG argues that there is a substantial danger of inconsistent rulings, particularly if the Court were to impose a burden on it above and beyond what PADEP has imposed. However, the court in Baykeeper noted that “a more stringent remediation standard ... is not a reason to invoke the primary jurisdiction doctrine.” 660 F.3d at 692 (quoting Interfaith Cmty. v. PPG, 702 F.Supp.2d at 312). PPG makes several arguments as to why the fourth factor weighs in its favor.

First, it argues that the 2009 Administrative Order encompasses the same issues as Plaintiffs’ CWA/CSL Claims in Counts I-VIII and the claim in the RCRA Complaint. Plaintiffs respond that this overstates the breadth of the 2009 Administrative Order which, by its terms, concerns discharges from the Site. (PPG Ex. 2 at 5 ¶ D) (requiring development of Treatment Plan to “collect and treat all industrial waste discharges, Leachate, and seeps from the Site into the waters of the Commonwealth”).

Plaintiffs argue that the RCRA Complaint concerns remediation of the Site itself, not just management of the discharges and thus the 2009 Administrative Order cannot be a basis for application of the primary jurisdiction doctrine with respect to their RCRA Complaint.

Second, PPG argues that this factor weighs in favor of primary jurisdiction because PADEP has “undertaken activities and investigations” at the Site since 1971. (ECF No. 25 at 28-29.) Plaintiffs do not dispute that PADEP has a long-running interest in the Site, though PPG itself acknowledges that those activities have at times reached a “standstill.” (Id. at 29.) However, they argue that the fact that PADEP has attempted, since 1971, to have PPG either eliminate or treat discharges from the Site cannot credibly be a basis for determining that the primary jurisdiction doctrine should be applied.

The fact that the agency is still working on the same goal 42 years later is evidence of the necessity of this citizen suit, rather than its redundancy. See Interfaith Cmty. v. Honeywell, 399 F.3d at 265-66 (“20 years of permanent cleanup inaction” by the NJDEP justified court-ordered remediation). Third, PPG states that it has submitted an NIR under Act 2 with respect to the Slurry Lagoon Area and Solid Waste Disposal Area. Plaintiffs respond that PPG’s submission of an NIR under Act 2 does not weigh in favor of the application of primary jurisdiction since Act 2 is a voluntary remediation statute.

See 35 P.S § 6026.102(2) (“Incentives should be put in place to encourage responsible persons to voluntarily develop and implement cleanup plans without the use of taxpayer funds or the need for adversarial enforcement actions by the [PADEP] which frequently only serve to delay cleanups and increase their cost”).

In addition, they note that PADEP acknowledged receipt of the NIR on May 22, 2001, nearly 12 years ago. (PPG Ex. 18.) PPG characterizes the NIR as “pending” (ECF No. 25 at 17) and states that it will continue to carry out remediation under Act 2 after it has received approval on a final treatment system for the leachate seeps (id. at 23). Plaintiffs note that PPG had nearly eight years to carry out remediation between PADEP’s receipt of the notice of intent to remediate and the issuance of the 2009 Administrative Order.

Plaintiffs contend that PPG’s voluntary notice of intent to remediate, still pending after a decade, does not support the application of the primary jurisdiction doctrine on the grounds of overriding PADEP involvement. Finally, PPG argues that there is “no question that relevant agency proceedings have been initiated” since the issuance of the 2009 Administrative Order. (ECF No. 25 at 28.) PPG notes that the PADEP is currently reviewing the Treatment Plan it submitted in December 2012 that addresses the remediation of the leachate seeps.

Thus, it contends that this case differs from Baykeeper, in which the state agency had not taken action on the site nor required the defendants to undertake any further investigation or remediation prior to the filing of the lawsuit. Plaintiffs respond that those agency proceedings have no bearing on their RCRA Complaint and that, as to the CWA Complaint, while the 2009 Administrative Order represents more recent oversight by PADEP of the Site, it cannot undo 42 years of delay.

Moreover, there was still more than a two-year delay between PPG’s submission of the June 2009 Treatment Plan (PPG Ex. 28) and PADEP’s November 9, 2011, approval letter (PPG Ex. 30). Plaintiffs submit that, viewing the period over which PADEP and PPG have been negotiating remediation of the site, this factor weighs in their favor. Moreover, they contend that, even if the Court were to determine that this factor weighs in PPG’s favor, that is not sufficient for the application of the primary jurisdiction doctrine because the other three factors weigh decisively against the application of primary jurisdiction.

Bay-keeper, 660 F.3d at 692 (“this single factor cannot outweigh the others that disfavor abstention on primary jurisdiction grounds”). PPG cites three cases from district courts within the Tenth Circuit to support its position: McCormick v. Halliburton Co., 2012 WL 1119493 (W.D.Okla. Apr. 3, 2012), Davies v. National Cooperative Refinery Association, 963 F.Supp. 990 (D.Kan.1997), and Friends of Santa Fe County v. LAC Minerals, Inc., 892 F.Supp. 1333 (D.N.M.1995).

In McCormick, a district court invoked the doctrine of primary jurisdiction to abstain from hearing an RCRA citizen claim involving pollution of the groundwater by ammonium perchlorate because of the involvement of the Oklahoma Department of Environmental Quality (“ODEQ”).

The court, applying a different version of the primary jurisdiction factors, concluded that: 1) the RCRA claim raised issues outside the conventional experience of judges and within the special expertise of the ODEQ, namely the extent of the threat, whether immediate remediation was required and what type of remedy was best suited to the site; 2) the court’s involvement would create a great potential for conflicting orders if it approved of a different work plan or remediation plan; 3) Halliburton and the ODEQ had entered into a Consent Order pursuant to which Halliburton was obligated to cooperate with the ODEQ in investigating and remediating the matter; 4) the ODEQ had been diligent in responding once Halliburton notified it of the perchlorate; and 5) because the plaintiffs were requesting injunctive relief, there was an even greater likelihood that the court’s order could interfere with the administrative agency’s proceedings.

Id. at *2-3. The court cited several previous cases from within the Tenth Circuit, including Davies and Santa Fe. Id. at *2.

Plaintiffs respond that the Court of Appeals in Baykeeper explicitly distinguished both Davies and Santa Fe: in Santa Fe the state environmental agency conducted extensive hearings, in which the plaintiffs participated, which required the defendants to undertake specific investigation and remediation efforts, but they were not satisfied with the agency’s decision; and in Davies, the plaintiffs sought relief that would have directly conflicted with a state environmental agency action when the defendant agreed in a settlement to continue pumping an aquifer as part of its remediation efforts but the plaintiffs complained that the pumping was contributing to pollution on their property. “Here, by contrast, Raritan Baykeeper’s suit does not amount to a ‘collateral attack’ on an NJDEP decision, nor does it seek- a remedy that necessarily conflicts with any agency order.” 660 F.3d at 692.

As Plaintiffs note, this case resembles Baykeeper and not the Tenth Circuit district court cases on which PPG relies. Plaintiffs do not allege that an action by PPG which has been authorized by PA-DEP is contributing to pollution, nor are they mounting a collateral attack on PA-DEP’s decisions. Moreover, the standards applied in McCormick, Santa Fe and Davies are not the same as the standards applied by the Court of Appeals in Bay-keeper, and the latter are binding on this Court.

Thus, the “type of relief requested” is not a factor to be considered, the question is not whether the defendant “could” be subject to conflicting orders but whether there is a “substantial danger” of this occurring, the possibility of a- more stringent remediation standard is not a reason to abstain, and the court in Bay-keeper emphasized the citizen suit provisions of the RCRA and CWA whereas the district court cases appeared more willing to rely on the “special expertise” of state environmental agencies. See also Interfaith Cmty. v.

PPG, 702 F.Supp.2d at 312 (declining to follow Davies’ application of primary jurisdiction abstention). It is also noted that the decision in McCormick applied only to the RCRA claim, not any of the other claims asserted in the case. Applying the relevant factors, PPG has not demonstrated that this case is “one of those exceptional cases that calls for primary jurisdiction abstention.” Bay-keeper, 660 F.3d at 692.

While PADEP has expertise in environmental matters, this Court is competent to decide the case, as evidenced by Congress’s enactment of environmental statutes authorizing citizen suits in federal court, arid to grant Plaintiffs’ requested forms of relief. Second, although PADEP manages the NPDES program in Pennsylvania, neither the RCRA nor the CWA charges PADEP with enforcing federal environmental laws.

Third, PPG has not shown a “substantial likelihood of inconsistent rulings,” particularly when its concern appears to be based on the possibility of a more stringent remediation standard emanating from this Court. Finally, although PADEP proceedings have been initiated,.the fact that the agency has been involved in this matter for 42 years and it is still unresolved does not necessarily favor PPG, but even if it did this factor alone would be insufficient to outweigh the others that disfavor abstention on primary jurisdiction grounds.

Therefore, PPG’s motion to dismiss this case based on the abstention doctrine of primary jurisdiction is denied. Point Source Discharges/Nonpoint Source Discharges PPG moves to dismiss Counts I, II, III, IV, VII and VIII to the extent they encompass NPDES permitting requirements for nonpoint source discharges, which are not within the scope of citizen suits. Plaintiffs respond that these claims are appropriately asserted, either limited to point source discharges under the CWA or encompassing both point and nonpoint source discharges as permitted under the CSL.

As the Supreme Court recently stated: Congress passed the Clean Water Act in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 86 Stat. 816, 33 U.S.C. § 1251(a). A central provision of the Act is its requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable waters of the United States. See §§ 1311(a), 1362(12); EPA v. California ex rel.

State Water Resources Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). Decker v. Northwest Envtl. Def Ctr., — U.S. -, 133 S.Ct. 1326, 1331, 185 L.Ed.2d 447 (2013). To that end,

Section 301(

a) of the CWA provides that in the absence of a permit, except under specified circumstances, “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). The “discharge of a pollutant” is defined by the CWA as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A).

The term “point source” means: any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture. 33 U.S.C. § 1362(14).

Finally, the term “pollutant” means “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C. § 1362(6).

Section 1365(a) “authorizes private enforcement of the provisions of the Clean Water Act and its implementing regulations.” Decker, 133 S.Ct. at 1334 (citation omitted). PPG argues that the CWA unequivocally only requires NPDES permits for point source discharges and does not require such a permit for nonpoint source discharges. It argues that there can be no basis for a citizen suit for failure to obtain a NPDES permit for nonpoint source discharges. See, e.g., Oregon Natural Resources Council v. U.S.

Forest Service, 834 F.2d 842, 849 (9th Cir.1987) (“[W]e do not believe that the Act allows for the enforcement of state water quality standards, as affected by nonpoint sources, under the citizen suit provision”); Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 619-20 (D.Md. 2011) (“Discharge from migrations of groundwater or soil runoff is not point source pollution, however, but nonpoint source pollution.... There is no basis for a citizen suit for nonpoint source discharges under the CWA.”) (citations omitted).

The CWA defines a “point source” to be a “discernible, confined and discrete conveyance.” See 33 U.S.C. § 1362(14). However, a “discharge” occurring through migration of groundwater and soil runoff (i.e., uncontrolled stormwater runoff) represents “nonpoint source” pollution because there is no “discernible, confined and discrete conveyance.” See Sierra Club v. El Paso Gold Mines, 421 F.3d 1133, 1141 n. 4 (10th Cir.2005) (“Groundwater seepage that travels through fractured rock would be nonpoint source pollution, which is not subject to NPDES permitting.”); Northwest Envtl. Def. Ctr. v.

Brown, 640 F.3d 1063, 1070 (9th Cir.2011) (“Stormwater that is not collected or channeled and then discharged, but rather runs off and dissipates in a natural and unimpeded manner, is not a discharge from-a point source.”); Santa Fe, 892 F.Supp. at 1359 (holding that seepage of pollutants through soil into groundwater is not a point source, and therefore not subject to NPDES permitting requirements); Sierra Club v. Abston Constr.

Co., 620 F.2d 41, 45 (5th Cir.1980) (finding that gravity flow, resulting in a discharge into a navigable body of water, may be part of a point source discharge only if the water was at least initially collected or channeled); Cordiano v.

Metacon Gun Club, Inc., 575 F.3d 199, 220 (2d Cir.2009) (“Nonpoint sources include pollution from diffuse land use activities such as agriculture, construction and mining that enter the, waters primarily through indiscrete and less identifiable natural processes such as runoff, precipitation and percolation.”) (citation omitted). “Control of nonpoint sources continues to be a primarily a state function,' with indirect federal participation.” Id. (citation omitted).

PPG argues that one court has specifically held that “seeps,” almost identical to the ones Plaintiffs describe in their CWA Complaint, are nonpoint sources. Santa Fe, 892 F.Supp. at 1359 (“the seeps merely represent evidence that [acid mine drainage] has at some time in [the] past entered subsurface waters, possibly from the overburden pile or the remediation system. In other words, the seepages are non-point source carriers of pollutants ... and are therefore not subject to the Act’s permitting requirements.”).

Plaintiffs agree that the CWA regulates only point source discharges. (ECF No. 43 at 30.) However, they note that Count I specifically alleges that PPG is unlawfully discharging pollutants into navigable waters without an NPDES permit in violations of Sections 301(

a) and 402 of the CWA. Count II alleges that PPG has violated sections 301(

a) and 402(p)(2)(B), 33 U.S.C. §§ 1311(a), 1342(p)(2)(B), by discharging storm water associated with industrial activity without a permit authorizing such discharge. Thus, they contend that these claims are already limited to point source discharges. Contrary to PPG’s assertion, Plaintiffs have not merely alleged the existence of storm water discharges (which do not require a permit), but storm water discharges “associated with industrial activity” (which do require a permit), emanating from PPG’s glass manufacturing plant.

According to EPA regulations “storm water” “means storm water runoff, snow melt runoff, and surface runoff and drainage.” 40 C.F.R. § 122.26(b)(13). The phrase “storm water discharge associated with industrial activity” means: the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or activities excluded from the NPDES program under this

part 122. For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling sites; refuse sites; sites used for the application or disposal of process waste waters (as defined at

part 401 of this chapter); sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and final products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water.

For the purposes of this paragraph, material handling activities include storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, by-product or waste product. The term excludes areas located on plant lands separate from the plant’s industrial activities, such as office buildings and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas. 40 C.F.R. § 122.26(b)(14).

The regulation then goes on to list eleven “categories of facilities” that are considered to be engaging in “industrial activity.” Determining whether a storm water discharge is “associated with industrial activity” and therefore requires a permit is not necessarily straightforward or an easy process. Compare Decker, 133 S.Ct. at 1336-38 (deferring to the EPA’s

interpretation, although it was not necessarily “the best one,” that channeled storm water runoff from logging roads was not “associated with industrial activity” because the conveyances at issue were “directly related” only to the harvesting of raw materials, rather than to “manufacturing, processing, or raw materials storage areas at an industrial plant”) with id. at 1343 (Scalia, J., dissenting) (noting that the EPA’s own regulation interpreting the phrase “associated with industrial activity” refers to “facilities classified as Standard Industrial Classification 24,” which includes the industry of “logging.”); Brown, 640 F.3d at 1083-84 (same) In considering a complaint on a motion to dismiss, it is certainly plausible that Plaintiffs’ allegation that PPG’s glass manufacturing plant generated “storm water discharge associated with industrial activity” states a claim under the CWA.

PPG has not provided sufficient analysis of the issue to say otherwise. Whether this claim survives full discovery and a motion for

summary judgment or trial is another matter. Therefore, the motion to dismiss Counts I and II on the basis that they allege nonpoint source discharges is denied. Plaintiffs acknowledge that Counts III and IV do allege both point and nonpoint source discharges, but argue that they are pled under the CSL, which is more expansive than the CWA and is not limited to point source discharges. Specifically, Count III alleges that PPG has violated Sections 301 and 307 of the CSL, 35 P.S. §§ 691.301, 691.307, by discharging industrial waste into the Allegheny River, Glade Run and groundwater without a permit. Count IV alleges that PPG has violated

Section 401 of the CSL, 35 P.S. § 691.401, by discharging pollutants and waste into the Allegheny River, Glade Run and groundwater without a permit. The CSL provides that: No person or municipality shall place or permit to be placed, or discharged or permit to flow, or continue to discharge or permit to flow, into any of the waters of the Commonwealth any industrial wastes, except as hereinafter provided in this act. 35 P.S. § 691.301. Plaintiffs argue that, because the act uses the terms “place,” “discharge” and “flow,” each must have a distinct meaning.

None of these words are defined in the CSL, although “discharge” is defined in the CSL’s implementing regulations as “[a]n addition of any pollutant to surface waters of this Commonwealth from a point source.” 25 Pa. Code § 92a.2. The word “flow” is not defined in the regulations. Under both federal and Pennsylvania principles of statutory construction, meaning should be given to each word in a statute, if possible, and no word should be construed in such a manner as to make it superfluous. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); Tavarez v.

Klingensmith, 372 F.3d 188, 190 (3d Cir.2004); 1 Pa.C.S. §§ 1921(a), 1922(2); Freundt v. Commonwealth Dep’t of Transp., Bureau of Driver Licensing, 584 Pa. 283, 883 A.2d 503, 506 (2005). Plaintiffs contend that because “discharge” is defined as adding pollutants from a point source, “flow” must therefore mean issuing pollutants from a nonpoint source. They argue that this distinction is supported by the ordinary meanings of the terms: “discharge” means “

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