Opinion
2022-032-B
04-06-2023
SIERRA CLUB AND PENNENVIRONMENT v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, and PPG INDUSTRIES, INC., Permittee
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail) For the Commonwealth of PA, DEP: Tyra Oliver, Esquire Edward S. Stokan, Esquire (via electronic filing system) For Appellants: Tim Fitchett, Esquire Carolyn Smith Pravlik, Esquire Nicholas Soares, Esquire (via electronic filing system) For Permittee: Christina Manfredi McKinley, Esquire Richard S. Wiedman, Esquire (via electronic filing system)
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail)
For the Commonwealth of PA, DEP: Tyra Oliver, Esquire Edward S. Stokan, Esquire (via electronic filing system)
For Appellants: Tim Fitchett, Esquire Carolyn Smith Pravlik, Esquire Nicholas Soares, Esquire (via electronic filing system)
For Permittee: Christina Manfredi McKinley, Esquire Richard S. Wiedman, Esquire (via electronic filing system)
By Steven C. Beckman, Chief Judge and Chairperson
OPINON AND ORDER ON SIERRA CLUB AND PENNENVIRONMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND THE DEPARTMENT'S CROSSMOTION FOR SUMMARY JUDGEMENT
STEVEN C. BECKMAN, Chief Judge and Chairperson
Synopsis
The Board denies a Motion for Partial Summary Judgment and a Cross-Motion for Summary Judgment. The case involves complex issues of fact and law that make it inappropriate for resolution on summary judgment.
OPINION
Introduction
The Appellants in this matter, the Sierra Club and PennEnvironment ("Sierra Club"), filed a Notice of Appeal (NOA) with the Environmental Hearing Board ("Board") on May 10, 2022. In the NOA, Sierra Club sought review of the Department of Environmental Protection's ("DEP's" or the "Department's") approval of the financial assurance proposal submitted by PPG Industries, Inc. ("PPG") for the remedy at PPG's Ford City waste site ("PPG Waste Site"). Sierra Club's listed objection to the DEP's approval stated that the DEP's action was arbitrary, capricious and not in accordance with the DEP's legal obligations because the approval did not conform to the requirements of an amended consent order and agreement between the DEP and PPG and did not ensure that the proposed remedy for addressing the PPG Waste Site would be maintained in perpetuity.
The case proceeded through discovery and the discovery deadline was extended once until December 30, 2022. About three weeks prior to the end of discovery, Sierra Club filed the pending Motion for Partial Summary Judgment ("Motion"). After a short extension of time to complete discovery and file responses, PPG filed its Response to Appellants' Motion for Partial Summary Judgment ("PPG's Response") along with its Brief and a response to the Appellants' Statement of Undisputed Material Facts on January 31, 2023. On the same day, the Department filed similar documents (DEP's Response, Brief and Response to Statement of Undisputed Material Facts) but importantly for this decision, the Department also included a Cross-Motion for Summary Judgment ("DEP Cross-Motion"). On February 28, 2023, Sierra Club filed a Reply Brief in support of its Motion and a Brief in Opposition to the DEP Cross-Motion along with a Response to the DEP's Cross-Motion and a Response to DEP's Statement of Undisputed Material Facts. The Department did not file a reply to the Sierra Club's Response to the DEP's Cross-Motion. Now that deadline for filing dispositive motions and all related filings have passed, the Board is in the position to rule on the Motion and DEP Cross-Motion.
Sierra Club entitled its documents as a response to the DEP's Cross-Motion for Partial Summary Judgment but we note for the record that the DEP never characterized its Cross-Motion as one for partial summary judgment and we do not read it as anything but a full summary judgment motion.
Standard of Review
Summary judgment is appropriate when the record, including pleadings, depositions, answers to interrogatories, and other related documents, shows that there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035.1-1035.2; Muth v. DEP and Eureka Resources, LLC, 2022 EHB 337, 338-39, Camp Rattlesnake v. DEP, 2020 EHB 375, 376; Williams v. DEP, 2019 EHB 764, 765-66. In evaluating whether summary judgment is appropriate, the Board views the record in the light most favorable to the non-moving party. Sunoco Pipeline, L.P. v. DEP, 2021 43, 45; Stedge v. DEP, 2015 EHB 31, 33. All doubts as whether genuine issues of material fact remain must be resolved against the moving party. Eighty-Four Mining Co. v DEP, 2019 EHB 585, 587.
Summary judgment may only be granted in cases where the right to summary judgment is clear and free from doubt. Tri-Realty Co. v. DEP, 2016 EHB 214, 217. It is usually only granted in cases where a limited set of material facts are truly undisputed, and a clear and concise question of law is presented. Sludge Free UMBT v. DEP, 2015 EHB 469, 471; Consol Pa. Coal Co. v. DEP, 2011 EHB 571, 576. In cases involving complex issues of fact and law, the Board has found that summary judgment may be inappropriate and has held that such matters should be decided on a fully developed record at a merits hearing. Three Rivers Waterkeeper v. DEP, 2020 EHB 87, 89; Center for Coalfield Justice v. DEP, 2016 EHB 341, 347.
Discussion
On April 2, 2019, DEP and PPG executed a Consent Order and Agreement ("2019 COA") addressing the PPG Waste Site. (Sierra Club Statement of Undisputed Facts, Para 3). On November 4, 2020, an amendment to the 2019 COA was signed by PPG and DEP ("First Amendment"). Paragraph 13 of the First Amendment states as follows:
"13. Within thirty (30) days of the execution of this First Amendment, PPG shall submit documentation for the provision of financial assurances to the Department in an amount sufficient to secure the implementation and post-closure care, including without limitation long-term monitoring, operation and maintenance and replacement costs necessary to effectuate and maintain the remedy required by the 2019 Consent Order and Agreement and this First Amendment, or a revision of the remedy should the original fail, in perpetuity. Said financial assurances shall consist of an irrevocable letter(s) of credit and a standby trust in favor of the Department that conforms to the requirements of 25 PA Code section 287, Subchapter E and/or letter of credit and standby trust provisions established by 40 CFR 264.143(d) and 264.145(d)."
The Department approved PPG's financial assurance submittals covering the PPG Waste Site required by the First Amendment in a letter dated April 7, 2022. The approval covered three letters of credit as follows: 1) Slurry Lagoon Area - $22,206,800; 2) SWDA and Annex -$1,946,616 and 3) Site-wide construction operation, maintenance and monitoring - $12,363,864. The amounts of the letters of credit appear to be based, at least in part, on the use of Department worksheets that provide for a minimum time period of 30 years when calculating monitoring costs. (DEP Brief, p.4).
Sierra Club's Motion is presented as a motion for partial summary judgement, but we had some difficulty sorting out the specific issue on which Sierra Club believes it is entitled to a partial summary judgment. Its filings set forth a large amount of background information on historical conditions at the PPG Waste Site and the lengthy efforts to address those conditions. Sierra Club argues that the undisputed facts demonstrate that the Department did not ensure that PPG supply financial assurances adequate to fund the remedy at the PPG Waste Site in perpetuity as required under the First Amendment, but instead only obtained assurances that will cover 30 years of operation. In its Motion, the Sierra Club states that "the Board should thus find, as a matter of law, that approving a financial assurance package that only covered 30 years of operation, rather than for operation in perpetuity, was unreasonable, inappropriate, and not in conformance with the Department's obligation under the law and must be set aside. Partial summary judgment is appropriate because there is no genuine issue of material fact as to this issue." (Motion, p.2). In its Brief, the Sierra Club states that "[A]ppellants now seek partial summary judgment on the Department's failure to ensure that PPG establish financial assurances sufficient to operate and maintain collection and treatment of PPG's contaminated wastewater discharge in perpetuity." (Brief, p.1). Further in the Brief, the issue is restated as "The Department failed to ensure - indeed, it failed to even attempt to ensure- that the financial assurances were sufficient to assure the remedy in perpetuity as required by the Amended Consent Order. Because that decision by the Department was unreasonable, arbitrary, and not in conformance with the Department's obligations under the Clean Streams Law and the Pennsylvania Constitution, Appellants are entitled to partial summary judgment on that issue." (Brief. p.2). In a footnote appended to the last sentence just quoted, Sierra Club states "Appellants note that this motion seeks summary judgment on the Department's fundamental failure to even attempt to assure the remedy in perpetuity. This motion does not address the amount that is sufficient to satisfy that aim. The specifics of the amount will be addressed at the evidentiary hearing following the Board's decision on the fundamental issue presented by this motion." (Brief, p. 2, fn. 2). Finally in its proposed order attached to its Motion, Sierra Club requested that the Board grant its Motion and order that "the Department's April 7, 2022 approval of PPG Industries, Inc.'s financial assurance submission, as required by the November 4, 2020 amendment to the April 2, 2019 Consent Order and Agreement between PPG and the Department was unreasonable, inappropriate, and not in conformance with the Department's obligation under the law because it failed to ensure that the financial assurances were sufficient to secure the remedy in perpetuity." (Proposed Order, p.1). PPG in its Brief points out that while Sierra Club attempts to parse this case into an issue focused on the meaning of the term perpetuity, the real question as stated by Sierra Club in its Motion is whether the Department acted reasonably and in compliance with the law in approving the letters of credit. We agree that trying to apply a simplified linguistic analysis that relies on a finding that perpetuity is not 30 years and therefore, the Department's actions fall short of what was required, is not what Sierra Club appears to actually be seeking in its Motion and does nothing to advance our resolution of this case. Nothing about the language used by Sierra Club in its filings suggest a partial summary judgment but instead appear to request a full summary judgment on the reasonableness and lawfulness of the Department's actions in approving the letters of credit and we will treat it as such.
In their Responses to the Motion, both the Department and PPG acknowledge that the process used to evaluate PPG's financial assurance submittals relied on a thirty-year timeframe. The Department argues that rather than entitle Sierra Club to a partial summary judgment, the Department's use of the thirty-year timeframe was entirely consistent with paragraph 13 of the First Amendment and it is the Department that is entitled to a summary judgement. The Department's argument arises from the second sentence in paragraph 13 of the First Amendment that provides that PPG's financial assurances shall conform to the requirements of 25 PA Code section 287, Subchapter E. The Department specifically point out that provisions in 25 PA Code section 287, Subchapter E require the use of a Department form and guidelines in calculating the amount required for the financial assurances. It says that the Bond Worksheets are the required form and incorporate the required guidelines including the thirty-year timeframe. Therefore, the Department claims that it has full complied with the requirements of paragraph 13 of the First Amendment.
The Department also argues that Sierra Club misrepresents the review and approval process completed by the Department. Sierra Club argued that the Department's process for approving PPG's proposal was "wholly inadequate" and that the Department conducted no meaningful analysis of its own. (Brief, p.16). Among the issues it raises is that the Department did not take into account the need to eventually repair and/or replace parts of the remediation system at the PPG Waste Site. Sierra Club further argues that the Department is mistakenly relying on the continued existence of PPG and its ability to fund additional future requirements when there is no assurance that PPG will be around in the future. The Department and PPG dispute this characterization of the process that lead to the Department's acceptance. The Department argues that "[t]he record shows that the Department and PPG engaged in an effort that spanned some two years, with the exchange of PPG submittals and Department review memoranda that were detailed and scrutinizing." (DEP Brief, p.5). The Department contends that because it has the regulatory authority to review and require adjustments to cost estimates and to increase the amount of the letters of credit if necessary, its approval decision was proper. PPG in turn contends that "an assessment of financial assurances requires more than taking an expected annual cost and then multiplying that number by a period of time […] is not what PPG or DEP did to calculate the amount of required financial assurances." (PPG Brief, p.8). At the least, these different representations of the Department's review process and how PPG and the Department came to the figures they ultimately did, raises both a legal issue as to the proper interpretation of the requirements of Paragraph 13 of the First Amendment and support a finding that there are material facts in dispute that are inappropriate to resolve in a motion for summary judgment.
In its Brief, PPG primarily focuses on what it asserts are disputed material facts. PPG notes that because the Motion was filed prior to the close of discovery, Sierra Club was not in the position to consider the expert report from PPG's expert. According to PPG, its expert, Raymond Bummer, opines that the letters of credit are more than adequate to provide the required financial assurances in perpetuity. (PPG Brief, p.7). Sierra Club asserts that this information is irrelevant because its Motion is directed at the Department's decision and its pre-decision underlying analysis. (Reply Brief, p.19). It says that the Department was required to engage in reasoned and appropriate decision-making and that the Department failed to do so. Sierra Club argues that in fact, Mr. Bummer agrees with the Sierra Club that the Department's decision making was flawed. (Reply Brief, p. 21). All of this discussion by PPG and Sierra Club only strengthen our conclusion that there are disputed material facts in this case.
Our review of this matter convinces us that this case is not appropriate for resolution through summary judgment. It involves complex issues of fact and law that would be better decided following a hearing and the development of a detailed record. Resolution of this appeal will require the Board to understand the scope and cost of the approved remedy for the PPG Waste Site along with the language of the governing agreement and the adequacy of the financial documents in place to ensure that the remedy can be constructed, operated and maintained in conformance with the agreement. At a minimum, the language of paragraph 13 of the First Agreement that is at the center of the issue presented by the summary judgement motions, is open to interpretation. Ultimately, the issue for the Board to decide is whether the Department's decision to approve the letters of credit was reasonable, appropriate and in compliance with its legal obligations. In order to do that we need to know whether the amounts of the letters of credit and any process for adjusting those amounts is adequate to meet the future requirements at the PPG Waste Site. Live testimony in a hearing is clearly the best way to ensure that the Board has what it needs to decide this appeal. We see no advantage to deciding any of the issues presented in the Motion and DEP Cross-Motion at this time. Whether the amounts approved by the Department are adequate for the task is the central question and we look forward to hearing the parties' testimony on that issue.
Sierra Club raised an argument that the Department's Cross-Motion was untimely, and we agree that the Cross-Motion was filed untimely, and this provides a further independent basis for denying the Cross-Motion.
Therefore, we order the following:
ORDER
AND NOW, this 6th day of April, 2023, it is hereby ORDERED that the Appellants' motion for partial summary judgment and the Department's cross-motion for summary judgment are denied.