Pennenvironment v. PPG Industries, Inc. (127 F. Supp. 3d 336, 2015)

MEMORANDUM OPINION AND ORDER

ROBERT C. MITCHELL, United States Magistrate Judge.

Plaintiffs, PennEnvironment and Sierra Club, bring these citizen suits pursuant to section 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a)(1) (Clean Water Act or CWA), section 7002(a)(1)(B) of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B) (RCRA), and section 601(c) of the Pennsylvania Clean Streams Law, 35 P.S. § 691.601(c)(CSL), against Defendants, PPG Industries, Inc. (PPG), the Borough of Ford City (Ford City), and Buffalo & Pittsburgh Railroad, Inc. (BPRI), 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 cross-motions for partial summary judgment, filed by Plaintiffs and PPG. Plaintiffs contend that the evidence of record demonstrates that PPG should be held liable for making discharges without a permit in violation of both the CWA (Counts I, II, XIII and XV) and the CSL (Counts III, IV and XIV), for violating the 2009 Administrative Order issued by the Pennsylvania Department of Environmental Protection (PADEP) (Counts IX, X, XVI, XVII, XX, XXI, XXII and XXIII), and for participating in activities which may present an imminent and substantial endangerment to health or the environment (as alleged in the RCRA Complaints). PPG seeks judgment in its favor on the issue of whether two areas of land (the Eljer landfill and the baseball fields) are included within the definition of the Site. For the reasons that follow, Plaintiffs’ motion will be granted and PPG’s motion will be denied.

Facts

The Site is located in North Buffalo and Cadogan Townships in Armstrong County, Pennsylvania. It is bordered by Route 128 to the north, the Allegheny River to the south, Glade Run, a tributary of the Allegheny River, to the west and a feature that PPG terms the “Drainage Ditch” which flows southward and discharges into the Allegheny River to the east. (Revised Treatment Plan Report at 3.) From 1949 until 1970, PPG used parts of the property to dispose of slurry waste and solid waste from its former glass manufacturing facility across the river in Ford City, Pennsylvania. (2009 Administrative Order at PADEP3.) The flat glass manufacturing operation which generated the waste deposited at the Site has a Standard Industrial Classification of 3211 (Flat Glass). See, e.g., Letter from Thomas J. Ebbert, PPG Industries, Inc., to Scott Geiser, Fire Chief-Ford City Hose Company, enclosing 2012 Pennsylvania Tier II Emergency and Hazardous Chemical Inventory (January 29, 2013) (PPG016160); see also United States Department of Labor, Occupational Safety & Health Administration, Division D: Manufacturing, Major Group 32: Stone, Clay, Glass, and Concrete Products, Industry Group 321: Flat Glass. Operations with such a classification are designated as industrial activities. 40 C.F.R. § 122.26(b)(14)(iii).

PPG created three slurry lagoons in an area formerly used as a sandstone quarry in which it deposited the slurry waste. (Revised Treatment Plan Report at 2.) Collectively, the lagoons and surrounding area comprise an area of approximately 77 acres called the “slurry lagoon area” (“SLA”) on the western part of the property. PPG also disposed of solid waste in a landfill at the Site called the “solid waste disposal area” (“SWDA”) beginning in the 1920s until 1967. (Administrative Order at PADEP3.) The Allegheny River and a railroad line lie to the south of both the SLA and SWDA. Glade Run, a tributary to the Allegheny River, lies to the west of the SLA. (Revised Treatment Plan Report at 1.)

On its southern side, the SLA slopes steeply from the top of the slurry lagoon to the Buffalo and Pittsburgh Railroad tracks (formerly Pittsburgh and Shawmut) that run parallel to the Allegheny River. (Baker Envt’l, Inc. Remedial Investigation Report (“Baker RIR”) at 1-2 (PPG001818.) This slope is interrupted by the South Bench, a wide flat area. (Id. at 1-3 (PPG001819)). On its western side, the SLA slopes to Glade Run. (Revised Treatment Plan Report at 9 (PPG0050753).) This slope is referred to as the Western Slope. (Id. at 17 (PPG0050761)). A stream which PPG refers to as the Drainage Ditch runs between the SLA and SWDA. (Revised Treatment Plan Report at 3, 16 (PPG0050747, PPG0050760). See also Baker RIR at 2-4 (PPG001831).

Leachate is water contaminated as a result of its contact with the waste. Leachate is formed when uncontaminated stormwater and groundwater pass through the waste and become contaminated with the contaminants in the waste. (Administrative Order at 2 (PADEP000004) ¶ 14.) Fractures within the weakly cemented SLA waste provide a pathway for the leachate to travel. (Revised Treatment Plan Report at 129 (PPG0050873)). Some of the leachate emerges from the waste on the land surface at locations known as seeps. (Id. at 10 (PPG0050754)). The leachate that emerges is referred to as leachate, seeps, seepage, seepage water, and seep water. Infiltrating stormwater is referred to as infiltration. Id.

As PPG describes: “Precipitation infiltrating the former slurry lagoons and groundwater recharge within the subsurface provide the primary sources of water that contribute to the ongoing seepage from the SLA and also contribute significantly to the base flow of the Drainage Ditch.” (Revised Treatment Plan Report at 10 (PPG0050754). Leachate within the SLA “is expected to flow radially toward the east, south, and west, discharging into the Drainage Ditch on the east and onto the slopes on the southern and western sides of the former slurry lagoons.” (Id.) Some of this leachate flows within the slurry material and discharges at ground surface through seeps. (Id.; see Administrative Order at 3 (PADEP000005) ¶ 15.)

PPG has described the nature of the SLA and its seeps as “[being] primarily associated with groundwater affected by contact with rouge, and occur along the outside of the southern and western flanks of the SLA Site.” Request for Proposal, Professional Environmental and Engineering Design Services, Former Ford City Facility Slurry Impoundment (March 17, 2009) at 4 (PPG034173). PPG further described that:

The primary issue of interest is the seep discharge of groundwater exhibiting elevated pH along the steep slopes down-gradient of the former impoundments. Various metals have been detected in the seeps, including arsenic, chromium, and lead. These metals and the elevated pH are believed to arise as a result of contact of groundwater with the “rouge” located in the former slurry lagoons, and possibly within portions of the dikes.

Id.

The seep water contains metals, including aluminum, antimony, arsenic, chromium, iron, and lead. (December 2014 Monthly Progress Report, Table 4 (PPG0053049-53064); see also Revised Treatment Plan Report at 54 (PPG0050798). The seep water also has regularly had a high pH. PADEP describes the seep water or leachate as having “a very high pH.” (Administrative Order at 2 (PADEP000004) ¶ 12.)

PPG notes that every value with a “U” in its monthly progress report means that a metal was not detected at the reporting limit. (December 2014 Monthly Progress Report, Table 4 at 16 (PPG0050364). Plaintiffs reply that it is irrelevant that some of the metals in some instances were not detected above the reporting limit since they are not asserting that the data demonstrate violations of a numerical discharge limit, such as the numerical limit imposed on PPG’s discharge for Total Suspended Solids (TSS). Instead, they rely upon the data to demonstrate the presence of pollutants in the water being discharged. Plaintiffs maintain that it is the discharge of “any pollutant” that triggers the requirement for a National Pollutant Discharge Elimination System (NPDES) permit, not the discharge of a certain amount of pollutants. Thus, they argue that PPG’s response on this point is immaterial to the issue of its liability for discharging pollutants without an NPDES permit.

Some of the seep locations have been given designations. For example, the Administrative Order identifies 18 seeps by name or designation. (Administrative Order at 4, Performance Obligation A (PA-DEP000006). The named seeps are located on the South Bench, on the Western Slope, and in the Drainage Ditch. (Id. Ex. B (PADEP000015). Other seeps lack a specific name or designation. Some of the unnamed seeps were discovered after the issuance of the Administrative Order. (Shaw Rule 30(b)(6) Dep. at 52-55; Revised Treatment Plan Report at 5 (PPG0050749).

PPG responds that that unnamed seeps identified in the South Bench area after the issuance of the Administrative Order have been “tied” into the Interim Abatement System for collection and treatment and other unnamed seeps identified after the issuance of the Order are being passively treated. (Shaw Rule 30(b)(6) Dep. 52-55, 59-60; Revised Treatment Plan Report at 5 (PPG0050749). PPG also notes that the Administrative Order does not require it to collect and treat unnamed seeps discovered after its issuance as part of the interim abatement system; rather, it only requires PPG to monitor for, collect and treat, any newly discovered seeps after the required permitted, permanent collection and treatment system is in operation. (Administrative Order at 5-6, Performance Obligations C, E (PADEP7-PA-DEP8).

Plaintiffs reply that PPG’s assertion that all unnamed seeps identified after the issuance of the Administrative Order have been incorporated into the interim abatement system for collection and treatment is not supported by the record, which demonstrates that several seeps remain uncollected and untreated. See, e.g., CEC Checklist at 15 (“Although many of the seeps originating from the SLA are now being collected by the Interim Abatement System (IAS) along the South Bench area, there are still seeps flowing down the steep slope at the southeastern border of the site to the railroad grade at the base of the hill.”). They maintain that, contrary to PPG’s claim, only some, not all, of the unnamed seeps not collected for treatment in the interim abatement system are passively treated. There are unnamed seeps at the base of the SLA that are not passively treated. Plaintiffs note that Dr. Kilburg explained on pages 62-63 of his testimony that neither Seep 5 nor the seeps at the railroad level are tied into the system or treated with mulch (passive treatment). Cf. ECF No. 207 Ex. 1 at 17 (PPG0050761) (identifying the seeps which are being passively treated with mulch).

There are unnamed seeps at the base of the SLA that flow into the drainage channel that runs parallel to the railroad tracks. (Shaw Rule 30(b)(6) Dep. at 60.) The drainage channel is on the north side of the railroad tracks on the southern side of the Site. (PPG Rule 30(b)(6) Dep. at 76.) These seeps are not collected and treated in the interim abatement system. (Shaw Rule 30(b)(6) Dep. at 60.)

PPG contends that the Administrative Order does not require it to collect and treat unnamed seeps discovered after its issuance as part of the interim abatement system; rather, it only requires PPG to monitor for, collect and treat, any newly discovered seeps after the required permitted, permanent collection and treatment system is in operation. (Administrative Order at 5-6, Performance Obligations C, E (PADEP7-PADEP8).) Further, the limited number of seeps that are not collected in the Interim Abatement System are passively treated as per the PADEP approved Interim Abatement Plan. (Revised Treatment Plan Report at 17, 28 (PPG0050761, PPG0050772).)

Plaintiffs reply that they are not seeking summary judgment for failure to collect and treat these seeps in the interim abatement system. Instead, PPG has pollutant discharges other than the discharges associated with Outfall 001 and the interim abatement system for which Plaintiffs seek summary judgment. The documents cited by PPG have no bearing on the existence, location, or flow path of these unnamed seeps, and PPG’s response admits that unnamed seeps exist.

Two seeps have been identified on the north-facing slope of the SLA. (Revised Treatment Plan Report at 16 (PPG0050760). These seeps discharge to a surface water channel adjacent to State Route 128. (Id.)

Flow in the Drainage Ditch is fed, in part, by seep water from both the SLA and the SWDA. (Baker RIR at 2-4 (PPG001831). Seep 105 discharges directly into the Drainage Ditch. (Revised Treatment Plan Report at 17 (PPG0050761); Shaw Rule 30(b)(6) Dep. at 17, 82-83. There are other, unnamed seeps that discharge into the Drainage Ditch. (Shaw Rule (30)(b)(6) Dep. at 114.)

PPG contends that the documents to which Plaintiffs cite do not support the allegation that unnamed seeps discharge into the Drainage Ditch. Seep 105 is the only identified seep that discharges into the Drainage Ditch. (Revised Treatment Plan Report at 17 (PPG0050761); Shaw Rule 30(b)(6) Dep. at 17.)

Plaintiffs reply that PPG is simply incorrect about the documents. First, the Baker RIR states:

Several seeps were observed along the southwestern toe of the SWDA. The seep water from the SWDA mixed with seep water from the lagoons in the stream which flowed down the slope to the railroad tracks. Culverts under the tracks directed the water to the Allegheny River.

(ECF No. 207 Ex. 2) at 2-4 (PPG001831.) Seep 105 is an identified or named seep in the Drainage Ditch, as PPG admits. STRM2 is also an identified or named seep in the Drainage Ditch. (Administrative Order, Performance Obligation A & Ex. B (PADEP 6-7, 15). The other seeps referred to in this report are logically unnamed seeps. Second, Dr. Kilburg testified that “there’s a seep right at the end of the weir bypass structure” in the Drainage Ditch. (Shaw Rule (30)(b)(6) Dep. at 114; see also id. at 15 (noting that seep in the drainage ditch is unidentified). Plaintiffs note that Seep 105 is north or upstream of the weir bypass structure (PPG Opp. App. Ex. J at 5 (PPG011436)), so it is not the seep identified by Dr. Kilburg in his testimony. STRM2 is identified as being at the intake for the weir bypass structure (ECF No. 207 Ex. 8, Table 2, notes on p. 14 (PPG 0053044)), so it is not the seep identified by Dr. Kilburg in his testimony.

PADEP found that “[t]he Leachate discharges seep out of the Slurry Lagoon and the Landfill at various locations at the Site and then flow or are conveyed into the waters of the Commonwealth. These waters of the Commonwealth include the Allegheny River and Glade Run in Cadogan and North Buffalo Townships, in Armstrong County, Pennsylvania.” (Administrative Order at 3 (PADEP000005) ¶ 15.) The average flow from the seeps named in the Administrative Order and Outfall 001 is 29 gallons per minute (gpm). (Revised Treatment Plan Report at 28 (PPG050772).) The average discharge for seep water collecting in the drainage channel adjacent to the railroad tracks along the SLA is eight gpm. Thus, the average seepage rate discharge from the SLA is 37 gpm. Consequently, the average seepage rate discharge from the SLA on a daily basis is 53,280 gallons per day.

Although “seepage rates are dependent on precipitation[, * * *] the quantity of water discharging from the seeps is more dependent on precipitation patterns rather than individual precipitation events.” (Revised Treatment Plan Report, App. Z (PPG0051940-51941).)

Administrative Enforcement History

On March 8, 1971, in response to a Notice of Violation issued by the PADEP, PPG and PADEP entered into an Agreement and Stipulation concerning the Site. In the Agreement and Stipulation, PADEP and PPG stipulated that “industrial wastes were being discharged from various points [on the Site] to the waters of the Commonwealth, to-wit, the Allegheny River,” and that this discharge was “continuing.” (Agreement and Stipulation at 1-2 (PA-DEP000011-12). PPG committed to “immediately undertake a study of the problems created by virtue of the continuing discharge of industrial waste from various points at its industrial waste disposal site.” PPG further committed to submitting a plan to PADEP by August 31, 1971, to either “eliminate said continuing discharge from said site or to permanently treat said continuing discharge from said site.” (Id. at PADEP000012.)

PPG submitted a proposal to PADEP in which it proposed a continued untreated discharge from the Site into the Allegheny River. (Administrative Order at 2 (PA-DEP000004), ¶ 8.) PADEP advised PPG that such a proposal was unacceptable.

By April 23, 1971, PPG proposed to the Borough of Ford City the transfer of the Site to the Borough for recreational use. (ECF No. 207 Ex. 16.) In the resolution approving the transfer of the property, the Ford City Borough Council stated that the transfer was intended to aid Ford City’s attempt “to update its recreational offerings for people of all ages.” (ECF No. 207 Ex. 17.) On October 16, 1972, PPG sold the Site to the Borough of Ford City for one dollar. (ECF No. 207 Ex. 18.)

After the sale of the Site, on May 16, 1973, PPG withdrew its non-treatment proposal to PADEP (Administrative Order at 2 (PADEP000004) ¶ 11) and did not proceed with remediation of the Site pursuant to the 1971 Agreement and Stipulation (PPG Rule 30(b) (6) Dep. at 92-93.)

On February 21, 1992, PADEP issued a Notice of Violation to PPG regarding the Site. The Notice of Violation stated that “PPG has, through past disposal practices, disposed of waste materials onto the ground and into waters of the Commonwealth, contrary to the Rules and Regulations of the Department.” (ECF No. 207 Ex. 19.)

In response to that Notice of Violation, Baker Environmental conducted a remedial investigation of the Site on behalf of PPG. (Revised Treatment Plan Report at 6 (PPG0050750).) The final remedial investigation report was submitted to PADEP in October 1993. (ECF No. 207 Ex. 2.) Between 1994 and 2009, PPG conducted various studies of the Site. (Revised Treatment Plan Report at 6-8 (PPG0050750-50752). During this timé PPG did not eliminate or treat its discharges from the Site. During this time PPG did not apply for an NPDES permit for its discharges from the Site. (PPG Rule 30(b) (6) Dep. at 93-94.)

PPG contends that the document and testimony to which Plaintiffs cite establish that PPG conducted studies of the Site prior to 1994 and that PPG did apply for an NPDES permit for stormwater discharges associated with construction activities. (Revised Treatment Plan Report at 6-8 (PPG0050750-PPG0050752); PPG Rule 30(b)(6) Dep. at 93-94.) PPG also notes that Plaintiffs have also not provided any record support for the assertion that between 1994 and 2009, PPG “did not eliminate or treat its discharges from the Site.”

' Plaintiffs reply that PPG’s response rests on an overly literal reading of the cited documents. The cited testimony from PPG’s Rule 30(b)(6) deponent clearly establishes that, although PPG applied for an NPDES permit for stormwater discharges associated with construction activities, it did not apply for an NPDES permit for its discharges from the Site. They argue that it is disingenuous for PPG to deny that it failed to eliminate or treat its discharges from the Site prior to 2009. The Revised Treatment Plan Report describes remedial investigations and other reports prepared on behalf of PPG prior to 2009, but does not describe any actions taken to eliminate or treat PPG’s discharges from the Site. (Revised Treatment Plan Report at 6-8 (PPG0050750-PPG0050752).) PPG’s March 17, 2009, Request for Proposal, Professional Environmental and Engineering Design Services, states that, “[mjitigating the elevated pH levels occurring on and emanating from the Ford City property in surface seepage is the principal objective,” indicating that, as of that date, PPG had not addressed the seeps from the Site. (ECF No. 207 Ex. 7 (PPG0034173). The installation of the interim abatement system in the fall of 2009 is the first documented activity undertaken by PPG to treat its discharges. (Revised Treatment Plan Report at 8 (PPG0050752).) Further, PPG’s pending NPDES permit application for discharges from the Site, as ordered by this Court (ECF No. 192), demonstrates that it did not and has not eliminated its discharges.

2009 Administrative Order

On March 9, 2009, PADEP, “recognizing that PPG continued to discharge pollutants from the Site into state and federal waters without being authorized by an NPDES permit” (Harper Aff. ¶ 3) issued an Administrative Order to PPG regarding the Site containing factual findings and imposing performance obligations. In the letter accompanying the Administrative Order, PADEP stated that: “The 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.” (Letter from Samuel C. Harper, PADEP, to Mark E. Terril, PPG Industries, Inc. (March 9, 2009) (PADEP000001).)

The PADEP official who issued the Administrative Order, Samuel C. Harper, has stated that the “Administrative Order was issued to address PPG’s discharges to the waters of the Commonwealth of Pennsylvania, particularly the Allegheny River and adjacent wetlands, by requiring PPG to obtain and abide by the required NPDES permit(s) for the Site.” (Harper Aff. ¶ 4.) Mr. Harper further stated that PPG should have filed for an NPDES permit for the Site as early as 1972. (PI H’rg Tr. at 46, 55, 62.)

The PPG Site that is the subject of the Administrative Order includes both the SLA and the SWDA. The Administrative Order stated that:

Part of the Property located in Cadogan and North Buffalo Townships (“Site”) was used by PPG to dispose of waste products from its former facility in Ford City, Pennsylvania. PPG disposed of glass polishing waste slurry in lagoons (“Slurry Lagoons”) at the Site from 1949 until 1970 (“Slurry Lagoons”) [sic]. The Slurry Lagoons are now covered. PPG also disposed of solid wastes in a landfill at the Site from the 1920s until 1967.

(Administrative Order at 1 (PA-DEP000003) ¶ 4.)

The Administrative Order stated that the industrial waste discharges from the Site, as noted in the 1971 Agreement and Stipulation, “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.” (Administrative Order at 2 (PA-DEP000004) ¶ 12.) The Administrative Order further concluded that the leachate is contaminated with hazardous substances: “Precipitation which infiltrates the Slurry Lagoons and the Landfill at the Site becomes contaminated with hazardous substances, as defined under the Hazardous Sites Cleanup Act (HSCA), [* * *] and then is discharged into the waters of the Commonwealth. This contaminated precipitation is known as ‘Leachate.’ ” (Administrative Order at 2 (PA-DEP000004) ¶ 14.) The Administrative Order further concluded that PPG was in violation of Section 611 of the CSL, 35 P.S. § 691.611. (Id. at 4 (PADEP000006) ¶27.)

The Administrative Order found that the “Leachate discharges seep out of the Slurry Lagoons and the Landfill at various locations at the Site and then flow or are conveyed into the waters of the Commonwealth. These waters of the Commonwealth include the Allegheny River and Glade Run * * *.” (Administrative Order at 3 (PADEP000005) ¶ 15.) These discharges “constitute industrial waste pursuant to Section 1 of the Clean Streams Law, 35 P.S. § 691.1, and pollutants as defined in 25 Pa.Code § 91.1. The discharges result in or may result in pollution of waters of the Commonwealth, in violation of Sections 401 and/or 402 of The Clean Streams Law, 35 P.S. §§ 691.401, 691.402.” (Id. at 3 (PADEP000005) ¶ 16.) The Order further found that “PPG is allowing contaminated Leachate and other liquids to be discharged from the Site into waters of the Commonwealth, resulting in pollution of those waters of the Commonwealth.” (Id. at 3 ¶ 21.)

The Administrative Order was specifically issued pursuant, to PADEP’s authority under the CSL. (Administrative Order at 4 (PADEP000006) (citing 35 P.S. §§ 691.5, 691.316, 691.402, 691.601, 691.610). The Administrative Order imposed a number of Performance Obligations on PPG, including, but not limited to, the following:

a. PPG shall conduct weekly monitoring and reporting of seeps, for flow, total suspended solids, oil and grease, iron, aluminum, lead, chromium, antimony, arsenic, and pH (Performance Obligation A);

b. “Until such time as the industrial waste discharges, Leachate, and seeps are collected and conveyed to an industrial waste treatment facility and the discharge from that facility is authorized by an NPDES permit, PPG shall implement interim abatement measures” (Performance Obligation C);

c. Within 90 days of the date of the Administrative Order, PPG “shall submit to the Department for review and approval, a treatment plan and schedule (‘Treatment Plan’) to collect and treat all industrial waste discharges, Leachate and seeps from the Site into the waters of the Commonwealth. [* * *] PPG shall identify * * * the necessary NPDES pemiit(s) for the authorization of the discharges associated with the collection and treatment system. PPG shall provide a schedule for applying for the necessary permits.” All such schedules must be approved by PADEP and “shall be incorporated herein as obligations of this Order.” (Performance Obligations D, G).

(Id. at 4-6 (PADEP000006-8).)

On April 8, 2009, PPG submitted an interim abatement plan to PADEP. (Letter from Thomas J. Ebbert, PPG Industries, Inc., to PADEP enclosing Interim Abatement Plan (April 8, 2009). The interim abatement plan proposed to adjust the pH of the seep discharges through the addition of sulfuric acid to the contaminated water flowing across the Site, including using an in-stream mixing approach in the Drainage Ditch. (Id. (PPG0017031-17032).

PPG responds that it submitted an initial Interim Abatement Plan to PADEP on April 8, 2009, which proposed, among other things, to neutralize high pH waters in the Drainage Ditch utilizing an in-stream mixing approach with a pH adjustment system. The initial Interim Abatement Plan also proposed to both passively and actively treat the seeps in the South Bench area through a pH adjustment system. (Id. at 3-2 to 3-3 (PPG0017032-PPG0017033). These pH adjustment systems proposed to use sulfuric acid in a carefully controlled mineral acid feed system at discrete locations, as the means of adjusting the pH. (Id. at 3-1 to 3-2 (PPG0017031-PPG0017032). Finally, the Interim Abatement Plan proposed to provide pH mitigation through a series of passive and semi-passive approaches in the Western Slope area. (Id. at 3-3.) (PPG0017033). The Interim Abatement Plán also provided for infrastructure improvements in order to operate the pH adjustment system, installation of equipment in order to conduct the interim monitoring required by the 2009 Administrative Order, and an implementation schedule for all of the elements of the plan. (Id. at 4-1, 5-1, 6-1 (PPG0017034-PPG0017036).

On April 9, 2009, PADEP rejected PPG’s proposed Interim Abatement Plan, stating that it did not fulfill the requirements of the Administrative Order that PPG collect and treat the seepage or collect and haul the contaminated seep water from the site. (Letter from Samuel C. Harper, PADEP, to Thomas J. Ebbert, PPG Industries, Inc. (April 9, 2009). In the letter, PADEP stated that the submitted plan “in fact utilizes waters of the Commonwealth as a treatment option” and that “[njone of the options presented are acceptable to the Department.” (Id.) PPG responds that the only portion of the April 8, 2009 initial Interim Abatement Plan that PADEP disapproved was the proposal for the in-stream mixing approach in the Drainage Ditch. Id. See ECF No. 207 Ex. 13 at 1 (PADEP 2906).

On May 26, 2009, PPG submitted an addendum to its Interim Abatement Plan, which purported to address PADEP’s refusal to allow the use of the “waters of Commonwealth” to treat the leachate. (ECF No. 207 Ex. 13.) PPG’s revised plan proposed to remove the base flow from the Drainage Ditch and treat it on-site. (Id. (PADEP002909-2910).

On July 2, 2009, PADEP approved “the revised Interim Abatement Plan, in which PPG identifies that it will collect wastewa-ter from the Site and treat that wastewa-ter in a treatment system that will be designed to address any accumulated sludge that may result from treatment and neutralization,” and issued an Addendum to the Administrative Order. (July 2 Addendum at 1 (PADEP000016). The letter granting approval specified that PPG “shall install, operate, and maintain the collection and treatment system in accordance ‘with the requirements of Attachment A” and that “PPG shall design the collection system using pipes, therefore, avoiding the collection and treatment of uncontaminated storm water runoff.” Id. As of July 2, 2009, the revised Interim Abatement Plan was incorporated into the Administrative Order as a performance obligation. (Administrative Order at 5, Performance Obligation C (PADEP000007).)

Attachment A to the July 2, 2009, Addendum required PPG to “monitor the discharges from any temporary system and * * * comply with the effluent limitations” set forth therein. (July 2 Addendum (PA-DEP000018).) Specifically, Attachment A required that PPG monitor and report the levels of aluminum, arsenic, iron, lead, chromium, and antimony in the discharge, and established effluent limitations for TSS, oil and grease, and pH. Id. For the TSS parameter, the Attachment established an instantaneous maximum limit of 60 mg/1 and an average monthly maximum of 30 mg/1. The Attachment also established that pH must be “[w]ithin the range of 6.0 to 9.0 of standard units.” Id. The Attachment further provided that the interim abatement system should be operated such that “[n]o untreated or ineffectively treated wastewaters shall be discharged into the waters of the Commonwealth” and instructed that “Storm water * * * shall not be conveyed to the Systems for which this authorization is issued, without the approval of the Department” (id. (PA-DEP000018-19)). PADEP stated that the “discharge of untreated or improperly treated industrial wastes to the waters of the Commonwealth is contrary to the requirements of the Department.” Id. (PA-DEP000019.)

Although PADEP approved the Interim Abatement Plan generally, it required PPG to “submit a final design [for the interim abatement system] before construction commences. This will allow the Department to review the final plan.” (July 2 Addendum (PADEP000016). PPG submitted a final design of the interim abatement system to PADEP on September 11, 2009, but PADEP never issued final approval of the design. (PPG Rule 30(b)(6) Dep. at 52; Shaw Rule 30(b)(6) Dep. at 23.)

PPG’s interim abatement system was operational by February 2010. (Revised Treatment Plan Report at 5 (PPG0050749). The collection system collects and combines seep discharges and stormwater runoff, directing the combined flow to the treatment system. The flow is then directed to a treatment box, where sulfuric acid is added to reduce the pH to between 6.0 and 9.0. Operating Plan for the South Bench & Drainage Ditch Neutralization System for PPG Former Ford City Slurry Lagoon. The interim abatement system is fully automated. (Id. (PPG0027367). This form of treatment is called neutralization. (Revised Treatment Plan Report at 74 (PPG0050818).

PPG denies the second and third sentences as stated. The document to which Plaintiffs cite makes no mention of collecting stormwater runoff in the treatment system. Plaintiffs reply that the cited document describes the collection of base flow in the Drainage Ditch and seepage in a “riprap-lined channel” on the South Bench, both of which, by implication, are open to precipitation and thus convey stormwater runoff, along with seepage, to the treatment system. (Operating Plan (PPG0027367). As admitted by PPG, the interim abatement system includes open conveyances, the Drainage Ditch receives stormwater from the SLA and the SWDA and the collected flow in the Drainage Ditch includes stormwater. (See also Shaw Rule 30(b)(6)' Dep. at 19, 21.) The cited document specifically describes the addition of sulfuric acid to the flow to achieve a pH of between 6.0 and 9.0. (Operating Plan (PPG0027368).)

As part of the interim abatement system, PPG installed a weir bypass structure in the Drainage Ditch, designed to collect the base flow and direct it to the treatment system. (Revised Treatment Plan Report at 3 (PPG0050747). The bypass structure is designed to intercept and pass the base flow to the treatment plant at all times, while “allowing] flows greater than the base flow to remain in the” Drainage Ditch and discharge to the Allegheny River without treatment. (May 26, 2009, Addendum to Interim Abatement Plan at 1 (PADEP002909). The system was designed to accommodate a base flow of 12 gallons per minute. (E-mail from A1 Briggs, Key Environmental, Inc., to David Roote, PADEP (December 1, 2009). When the Drainage Ditch flow is greater than 12 gallons per minute, the excess flow, including leachate from the Site, discharges to the Allegheny River without treatment. (PADEP May 13, 2014 Comments at 2 (PPG0052122) (“Currently there is a diversion structure that allows dry weather flow to go to the treatment plant and wet weather flow.to go over a weir and discharge untreated”); cf. Shaw Rule 30(b)(6) Dep. at 83 (sample taken in the Drainage Ditch below the weir bypass structure “[absolutely” included water from Seep 105). The Drainage Ditch ultimately discharges to the Allegheny River and wetlands via the culverts under the railroad tracks. (PI H’rg Tr. at 96.)

PPG responds that the documents and testimony to which Plaintiffs cite do not contain any assertion that “leachate” is discharged to the Allegheny River without treatment during the rare storm events that exceed the base flow design of 12 gpm in the Interim Abatement System. Plaintiffs have also mischaracterized Mr. O’Hara’s testimony as he makes no mention or reference to the “Drainage Ditch” on the cited page. In further response, storm events that cause the 12 gpm base flow design for the Interim Abatement System are rare and there is no data that bypassed flows are impacted. See ECF No. 219 Ex. B at 39-40 (PPG0050783-PPG0050784).

Plaintiffs reply that PPG is simply incorrect that none of the cited documents demonstrate that leachate is discharged without treatment to the Allegheny River when the base flow of 12 gpm is exceeded. PA-DEP’s comments to PPG regarding the Treatment Plan Report (ECF No. 207 Ex. 26 at 2 (PPG0052122) state exactly that. Because the base flow of the Drainage Ditch includes contaminated leachate, the excess flow that is discharged untreated necessarily includes leachate. Dr. Kil-burg’s testimony also supports this fact. He testified that “the purpose of the weir bypass structure was to collect only the baseflow and to bypass the rest of the water.” (Shaw Rule 30(b)(6) Dep. at 18.) Plaintiffs also indicate that PPG’s objection that they have mischaracterized the testimony of Mr. O’Hara is simply incorrect. On the cited page, Mr. O’Hara specifically agrees that “storm water on the site goes through the drainage ditch feature that separates the slurry lagoon area from the solid waste disposal area” and, further, that such stormwater “goes through a culvert on Railroad property and then, eventually goes to the Allegheny River, yes.” (PI H’rg Tr. at 96.)

Plaintiffs contend that, contrary to PPG’s assertion, flow greater than the base flow of 12 gpm is not rare or limited to rare storm events. Weekly flow data reported to PADEP pursuant to the reporting obligations established in Attachment A of the July 2 Addendum reflect an average flow in the Drainage Ditch of 14.1 gpm, with approximately 49% of the weekly measurements exceeding 12 gpm. See Treatment Plan Report, Appendix H (GRAD021656-21772); Revised Treatment Plan Report, Appendix H (PPG0051362-51395).

PPG and its consultant, Shaw Environmental, Inc., designed the collection system of the interim abatement system using trenches and ditches that are open to precipitation. (Shaw Rule 30(b)(6) Dep. at 16 (affirming that the Interim abatement system is “a combination of open and closed conveyance”); id. at 17 (“Seep 105 discharges into the drainage ditch” where it “flow[s] openly before it reaches the weir structure”); id. at 20-21 (describing “an open channel * * * on the western part of the south bench to collect overland flow from the seepage”); PPG Rule 30(b) (6) Dep. at 48 (“So the design of the system is we don’t have a pipe drilled at one seep, we have a collection trench that allows for collection * * * ”); see also Rogers Aff. ¶¶ 2-3, Attachment A.

The interim abatement system discharges to the slope below the South Bench through a pipe, known as Outfall 001. (Shaw 30(b)(6) Dep. at 61.) The effluent flows down the slope into the drainage channel north of the railroad tracks. (PPG Rule 30(b)(6) Dep. at 76; Revised Treatment Plan Report, App. M, n. 1 (PPG0051582) (stating that “Outfall 001 flow is a primary contributor to the culvert flows * * * ”); see also Bell Aff. ¶¶ 6-7, Photographs 4-5.

The interim abatement system does not treat or remove metals from the collected flow or remove suspended solids. (Shaw Rule 30(b)(6) Dep. at 22, 24.) When it is discharged, the effluent at Outfall 001 contains metals, including at least arsenic, aluminum, antimony, chromium, and lead. (Revised Treatment Plan Report at 67-68 (PPG0050811-50812); December 2014 Monthly Progress Report, Table 4 (PPG0053049-53064).

PPG contends that the documents to which Plaintiffs cite do not support the proposition that the effluent at Outfall 001 contains metals as the Revised Treatment Plan Report only reports theoretical modeling results and the December 2014 Monthly Progress Report, Table 4 does not list the metals monitoring results for Outfall 001. Rather, the metals monitoring results for Outfall 001 are included in the monthly discharge monitoring reports (DMRs) and metals, such as chromium, are often not detected above the reporting limit as indicated by a “<” sign. See e.g., ECF No. 207 Ex. 41; ECF No. 219 Ex. D. In further response, PADEP’s Approval of the May 26, 2009 Addendum to the Interim Abatement Plan only requires monitoring for certain metals at Outfall 001 and does not set effluent limitations on the Outfall 001 discharge for metals nor require metals to be treated in this discharge. (ECF No. 207 Ex. 14.)

Plaintiffs reply that, by way of clarification, the December 2014 Monthly Progress Report (PPG0053049-53064) demonstrates the presence of metals, including aluminum, arsenic, antimony, chromium, and lead, in the seeps, which constitute a portion of the influent to the treatment system which discharges at Outfall 001. PPG admits in its response that the interim abatement system does not treat or remove the metals in the effluent. PPG further admits that the effluent at Outfall 001 contains these metals. The monthly discharge monitoring report for July 2013 reflects the presence of these metals in the effluent discharged at Outfall 001. (ECF No. 219 Ex. D; see also Revised Treatment Plan Report at 28 (PPG0050772) (describing measurements taken to determine “the average concentrations of the six metals that are being monitored in the Outfall 001 discharge water * * * including] aluminum, antimony, arsenic, chromium, iron, and lead * * * ”).

Plaintiffs contend that it is not relevant or material to their claims that PADEP’s Approval of the May 26, 2009, Addendum to the Interim Abatement Plan does not set effluent limitations on these metals or that the metals are on some occasions not detected above the reporting limit. Plaintiffs are not asserting that the data demonstrate violations of a numerical discharge limit, such as the numerical limits imposed on PPG’s discharge for TSS. Instead, Plaintiffs rely upon these data to demonstrate the presence of pollutants in the water being discharged. It is the discharge of “any pollutant” that triggers the requirement for an NPDES permit, not the discharge of a certain amount of pollutants.

The interim abatement system runs continuously. (Shaw Rule 30(b) (6) Dep. at 29.) The interim abatement system does not collect all seeps at the Site. (Shaw Rule 30(b)(6) Dep. at 5960; CEC Ecological Assessment at 15) (CEC001063). For example, Seep 5, which lies on the slope beneath the South Bench, is not collected or treated. (Shaw Rule 30(b)(6) Dep. at 62.) Although Seep 5 was one of the named seeps identified in the Administrative Order (p. 4, Performance Obligation A (PADEP000006)), it was not collected for the interim abatement system. Because of Seep 5’s location on the slope beneath the South Bench, it was not considered “expedient to collect it for the initial part of the installation of the interim abatement system,” due to the fact that “[PPG] would have had to install electrical service to collect and pump that water.” (Shaw Rule 30(b)(6) Dep. at 38; see generally id. at 36-38.) Seep 5 discharges down the slope to the drainage channel along the railroad tracks. (Id. at 38.)

PPG responds that, in August 2012, the Seep 5 base flow of 5 gpm was directed to the Interim Abatement System for pH adjustment. (Revised Treatment Plan Report at 17, 28 (PPG0050761, PPG0050772). Other seeps identified after implementation of the Interim Abatement Plan have been collected for treatment in the Interim Abatement System. (Id.) Certain seeps, including those on the Western Slope area of the SLA are passively treated as per the approved Revised Interim Abatement Plan. (ECF No. 207 Ex. 11, Figure 3.)

Plaintiffs reply that PPG’s denial ignores the distinction between the flow that is collected with respect to the pool adjacent to Seep 5 and the actual flow from the seep. In August 2012, PPG began collecting flow from a pool that lies upslope of Seep 5, with the hope of drying up Seep 5. (Shaw Rule 30(b)(6) Dep. at 39, 59; see also id. at 58.) PPG’s monitoring data from 2014 show that there is still flow from Seep 5. E.g., December 2014 Monthly Progress Report, Table 2 (PPG0053031-53043). Plaintiffs also indicate that, to the extent that PPG’s response suggests that all unnamed seeps are either collected for treatment in the interim abatement system or passively treated, several seeps remain uncollected, as described above.

PPG responds that the measured Seep 5 overflow is non-existent in certain months and negligible at less than 1 gpm in other months. (ECF No. 207 Ex. 8, Table 2.)

Plaintiffs reply that PPG’s response admits that flow from Seep 5 remains uncollected. The December 2014 Monthly Progress report demonstrates that flow from Seep 5 was recorded in 22 of the recorded weeHy measurements, with a peak flow of 21.4 gpm on August 12, 2014. This seep monitoring also shows that the Seep 5 flow has a pH as high as 10.32. (Id. Table 4 at 4 (PPG0053052).

Leachate from seeps not collected in the interim abatement system, such as Seep 5, flows down the slope into the drainage channel north of the railroad tracks. CEC Ecological Assessment at 15 (CEC001063) (“Although many of the seeps originating from the SLA are now being collected by the Interim Abatement System (IAS) along the South Bench area, there are still seeps flowing down the steep slope at the southeastern border of the site to the railroad grade' at the base of the hill”); Baker RIR at 2-4 (PPG001831) (on the southern side of the SLA “seep water flows south and ponds in several low areas that parallel the railroad tracks”); see also Bell Aff. ¶¶ 6-7, Photographs 4-5; Rogers Aff. ¶¶ 4-5, Attach. B.)

PPG responds that the base flow of Seep 5 is collected and treated in the Interim Abatement System. The limited number of seeps that are not collected as part of the approved Revised Interim Abatement Plan are passively treated. (Revised Treatment Plan Report at 17, 28.) It contends that Plaintiffs cannot rely on the Baker RUR as record support because it is dated almost 10 years prior to the implementation of the approved Revised Interim Abatement Plan.

Plaintiffs reply that the Revised Treatment Plan Report indicates that some seeps are currently unaddressed. (Id. at 28 (PPG00050772) (“Collection of other seeps downslope of the IAS treatment system is also being considered.”). Although the Baker RIR predates the implementation of the revised Interim Abatement Plan, the cited page documents the flow path of uncollected seep water on the southern side of the SLA. Plaintiffs contend that PPG has not pointed to any evidence suggesting that the flow path for uncollected seepage has been altered since the issuance of the report. Further, PPG has not addressed the additional evidence from Dr. Bell, which describes his observations in September 2013 regarding the flow path of seepage to the drainage channel adjacent to the railroad tracks. As noted above, seeps that are not collected and treated in the interim abatement system discharge directly into the drainage channel adjacent to the railroad tracks.

The water in the drainage channel adjacent to the railroad tracks discharges through culverts beneath the tracks. (Revised Treatment Plan Report at 58 (PPG0050802); PPG Rule 30(b)(6) Dep. at 76; Shaw 30(b)(6) Dep. at 68-69; CEC Ecological Assessment at 15 (CEC001063) (“This seepage is flowing through a culvert pipe beneath the railroad track and is entering the Allegheny River at the shoreline * * * ”); Baker RIR at 2-4 (PPG001831). For the culverts that lie directly south of the SLA, PPG has characterized this water as “discharging from the SLA.” (Revised Treatment Plan Report at 58 (PPG0050802).

In October 1993, PPG submitted to PA-DEP a Remedial Investigation Report prepared by Baker Environmental, Inc. on PPG’s behalf. The 1993 Baker RIR identified 15 wetlands at the Site. (Baker RIR at 5-21 (PPG001884); id. Figure 5-1 (PPG002048) (showing location of identified wetlands). Wetland # 15 lies between the railroad tracks and the Allegheny River and stretches along the length of the Site. The wetland is described as being “in the flood plain of the Allegheny River, adjacent to the watercourse.” (Id. 5-33 (PPG001896).)

Plaintiffs’ expert, Ralph E. Huddleston, confirmed this area as a wetland in November 2013. (Huddleston Expert Report at 8-9.) Mr. Huddleston observed that:

Seeps or surface water flowed down from the steep slope to the ditch north of the railroad tracks. Surface water flowed from the ditch into and through the northern end of culverts REH-W-2, 1, A, B, and C. Surface water flowed from the southern end of the culverts to a defined channel along the hillslope and into the floodplain wetlands. The surface water then flowed via a defined channel to the Allegheny River.

Id. at 8.

Data collected by PPG show that the seeps discharging from the Site contain at least aluminum, antimony, arsenic, chromium, iron, and lead. (December 2014 Monthly Progress Report, Table 4 (PPG0053049-53064); see also Revised Treatment Plan Report at 54 (PPG0050798). Data collected or reported by PPG and PADEP since 1972 have regularly indicated that the pH of the leachate discharging from the SLA ranges between 10 and 11.6. See, e.g., Industrial Waste Permit Application, PPG Ford City Works No. 5, Inactive Sludge Lagoons (July 1972) at 4-2 (PPG009423); Letter from James Elliott to Carl Bender (July 15, 1973) (PADEP003896); Letter from Barbara Grabowski to Jerry Miklos (June 29, 1994) (PADEP000535); Baker Environmental, Inc., Surface Water Monitoring Report (October 9, 1997) at 1-3 & Attach. D (PPG006840-6842; PPG006872-6891); Cummings/Riter Consultants, Inc., Report-Water Balance and Sampling (August 11, 2000) Table 3 (CRC000244); Memorandum from Annette T. Paluh to Dave Beal (January 22, 2007) (PADEP001874).

Data collected by PPG between July 2012 and June 2013 show that the pH of the water at the culverts is regularly above 9. See ECF No. 105 at 36-39 (table summarizing pH data collected by PPG). The highest of these readings was 11.48. (Id.)

PADEP requires that the pH of water discharged by PPG’s interim abatement system be "within the range of 6 to 9 standard units. (July 2 Addendum (PA-DEP000018).) Plaintiffs note that, because pH values are logarithmic, a pH of 11.48 is more than two orders of magnitude or approximately 300 times more basic than a pH of 9.0.

PPG disputes the characterization that the summary table shows that all culverts, especially culvert # 7, “regularly” have water with a pH above 9. Further, PADEP’s July 2, 2009 approval of the Interim Abatement Plan only requires water discharged from Outfall 001 to have a pH range within 6 to 9 standard units. (ECF No. 207 Exs. 13 and 14.) There has been no allegation or record proof provided that PPG has not continuously met this pH limitation at Outfall 001 and in fact, the opposite is true. See O’Hara Aff. ¶ 6.

Plaintiffs reply that, although the pH at culvert # 7 was recorded to be above 9.0 on only one occasion, collectively the pH at the all of culverts was recorded to be above 9.0 on 197 occasions between July 24, 2012 and June 25, 2013. (ECF No. 105 at 36-39.)

Plaintiffs further note that PPG’s assertion that PADEP’s July 2, 2009, approval of the interim abatement plan only imposes a limitation on the pH at the point of discharge from Outfall 001 is irrelevant because Plaintiffs are not claiming that PPG has violated the pH limit set in the Administrative Order at Outfall 001. PPG’s assertion that the culverts are not subject to the Administrative Order is irrelevant for the same reason. Plaintiffs do not seek summary judgment for PPG’s violation of the pH limitation at the culverts.

Data collected by PPG in March 2014 show pH readings of up to 11.835 in the Drainage Ditch just above the drainage channel adjacent to the railroad tracks. (Revised Treatment Plan Report, App. Q (PPG0051646). PPG has stated that these “pH levels in the southern portion of the Drainage Ditch * * * [are] similar to levels monitored from named seep location Seep 105 in the ditch.” (Revised Treatment Plan Report at 43 (PPG0050787). The pH levels in the portion of the Drainage Ditch upstream of the SLA are below 9.0 standard units.

PPG contends that the pH values referred to in this paragraph are pH values in the Drainage Ditch prior to collection and treatment in the Interim Abatement System. Plaintiffs reply that, accepting PPG’s claim that the referenced pH data point is upstream of the weir bypass structure that collects water in the Drainage Ditch for treatment in the interim abatement system, this does not mean that the pH of the water that bypasses this system is not similar to the pH of the water that is directed to the system. The water in the culverts at the base of the Drainage Ditch has a high pH. The Drainage Ditch discharges to the culverts and then to the Allegheny River.

Weekly pH data collected by PPG throughout 2014 and reported to PADEP in its Monthly Progress Reports indicate that the seeps frequently had pH levels exceeding 10 and 11, ranging as high as 12.36. (December 2014 Monthly Progress Report, Table 4 (PPG053049-53064). PPG responds that all the seeps that are monitored are being either actively or passively treated. (Revised Treatment Plan Report at 16-17 (PPG0050760-PPG0050761). Plaintiffs reply that some of this high pH seep water is discharged directly without pH adjustment in the interim abatement system, thus supporting their claims of unlawful discharge of pollutants without an NPDES permit. Some of this high pH seep water contaminates stormwater, thus supporting their claims of unlawful discharge of stormwater associated with an industrial activity. Some of this high pH seep water is present in open channels or ditches on the Site, which are accessible to humans and ecological receptors, thus supporting their RCRA claims that the high pH seep water on the SLA may present an imminent and substantial endangerment to health or the environment. Other high pH seep water that is discharged without treatment contaminates stormwater or is present in open, accessible channels and ditches on the SLA, is not presented in these particular pH data. On the other hand, it is irrelevant and not material to their claims that some of the monitored seeps are actively or passively treated since untreated, high pH seep water is discharged, contaminates stormwater, and is accessible to humans and ecological receptors.

Stormwater Runoff

Stormwater runoff from the Site is exposed to contamination that originates with the waste. (Revised Treatment Plan Report at 93, 100 (PPG0050837, PPG0050844) (discussing plans to prevent the mixing of unimpacted stormwater with leachate). PPG has stated that “it is PPG’s understanding that a National Pollutant Discharge Elimination System (NPDES) permit for storm water discharges associated with industrial activity would potentially be required if storm water runoff was discharged from the SLA via a conveyance that is used for collecting and conveying storm water.” (Id. App. Z (PPG0051938).

PPG responds that the first sentence of this paragraph is a gross mischaracterization of the cited exhibit. The cited exhibit only states that unimpacted storm water that infiltrates the surface will be segregated as part of the enhanced collection and treatment system in order to prevent mixing with the leachate. There is no evidence that storm water that runs off the surface of the SLA in the form of sheet flow is exposed to any contamination or is in anyway impacted.

Plaintiffs reply that PPG’s objection that their statement is a “gross mischaracteri-zation” of the cited statement in the Revised Treatment Plan Report rests on an overly limited reading of the exhibit. PPG also misrepresents the cited text. The Revised Treatment Plan Report describes a proposed plan to “collect[] leachate internal to the SLA * * * [which] will prevent mixing of the leachate with storm water.” (Revised Treatment Plan Report at 100 (PPG00050844). This statement necessarily implies that, in the absence of the collection of internal leachate, otherwise unimpacted stormwater mixes with that leachate. Responding to PADEP’s comments on the Treatment Plan Report, PPG noted that its revised proposal was intended to “mitigate the formation of high pH seeps and to eliminate the need for active treatment of storm water.” (Id. at PPG0051937). That the storm water runoff from the SLA takes the form of “sheet flow runoff’ indicates the manner in which it flows over the surface, but has no bearing on whether it is impacted by mixing with high pH seeps. PPG’s response to PADEP’s comments admits as much. (Id. at PPG0051937-PPG0051938.) PPG elsewhere admitted that stormwater is contaminated by leachate at the Site, stating that its proposed “remedy will include not only segregation and permitting of storm-water currently mixing with affected waters, but collection and treatment of the affected waters including stormwater runoff * * *.” PPG Opp’n Pls.’ Motion for Preliminary Injunction (ECF No. 178) at 7. According to PPG, the Allegheny River, Glade Run, and the Drainage Ditch are receiving streams for stormwater discharge from the Site. (Revised Treatment Plan Report at 52 (PPG0050796).)

In addition to seep water, the Drainage Ditch receives stormwater runoff from the SLA. (Revised Treatment Plan Report at 4;. PI H’rg Tr. at 96.) The Drainage Ditch also receives stormwater runoff from the SWDA. (Letter from Chris Girouard, PPG Industries, Inc., to Jessie Donahue, PADEP (March 25, 1994) (PADEP000424) (“With respect to the stream [Drainage Ditch], it is more appropriate to characterize this as a drainage channel as it primarily receives runoff water and seep water from the two areas of the site”).

Some of the flow in the Drainage Ditch is collected in the interim abatement system and conveyed to the treatment plant for pH neutralization and discharge. This collected flow includes stormwater that was uncontaminated before it commingled with the leachate or seep water. (Shaw Rule 30(b)(6) Dep. at 18 (the interim abatement system collects stormwater when “we’re flowing above baseflow”); id. at 19 (answering .“Yes” to the question of whether stormwater enters the interim abatement system from the inlet in the drainage ditch); id. at 20-21 (the “open channel * * * on the western part of the south bench * * * can collect stormwater if the conditions are right”); PADEP May 13, 2014 Comments at 2 (PPG0052122) (“PPG indicates that efforts would be taken to remove uncontaminated storm water that is now currently collected and conveyed by the eastern drainage ditch for treatment”).

The Drainage Ditch flow that is not directed to the IAS is discharged untreated to the Allegheny River via the culverts. See CEC Photographs 20 and 21. Stormwater runoff from the Site also enters the drainage channel adjacent to the railroad tracks and flows through the culverts to the wetlands and the Allegheny River. (PI H’rg Tr. at 96.) Stormwater runoff on the western side of the SLA flows into Glade Run. (Revised Treatment Plan Report at 52 (PPG0050796).)

In its May 13, 2014, Comments on the Treatment Plan Report, PADEP stated that “[a]ll discharges of storm water runoff (contaminated or uncontaminated) from the site will need to be included in the NPDES permit.” (PADEP May 13, 2014 Comments at 2 (PPG0052122).

In March 2010, PPG, through its consultant, Cummings Riter, Inc., began submitting discharge monitoring data to PADEP, pursuant to the monitoring requirements of the July 2009 Addendum. February 2010 Discharge Monitoring Report (“DMR”) (CRC0000943-944) PPG continues to submit such data on a monthly basis.

Total Suspended Solids Violations

For July 2010, PPG reported an instantaneous TSS value of 136 mg/1, exceeding the instantaneous maximum of 60 mg/1 in the Administrative Order. (July 2010 DMR (PPG0017653). PPG also reported a monthly average of 43.50 mg/1, exceeding the monthly average limit of 30 mg/1 in the Administrative Order.

PPG responds that the cover letter to the July 2010 DMR notes that one of the sampling events occurred during a very intense storm, with a resulting atypical result for TSS. (Id. (PPG0017652.)

Plaintiffs reply that it is irrelevant that the cover letter characterizes one of the TSS sampling results as “atypical.” Violations of effluent limitations are based on strict liability and PPG’s submission of the data to PADEP constitutes an admission of liability.

For August 2010, PPG reported an instantaneous TSS value of 3200 mg/1, exceeding the instantaneous maximum of 60 mg/1 in the Administrative Order. (August 2010 DMR (PPG0017623). PPG also reported a monthly average of 652.50 mg/1, exceeding the monthly average limit of 30 mg/1 in the Administrative Order. Id.

PPG responds that the cover letter to the August 2010 DMR notes that one TSS sampling event was anomalously high likely due to temporary system maintenance issues and that system maintenance procedures are being updated.

Plaintiffs reply that it is irrelevant that the cover letter characterizes one of the TSS sampling results as “anomalously high.” Violations of effluent limitations are based on strict liability and PPG’s submission of the data to PADEP constitutes an admission of liability. Thus, PPG’s submission of the data to PADEP constitutes an admission of liability.

For September 2010, PPG reported an instantaneous TSS value of 1980 mg/1, exceeding the instantaneous maximum of 60 mg/1 in the Administrative Order and another incident