Pennsylvania PublicInterest Research Group, Inc. v. P.H. Glatfelter Co.

No. 1:CV-99-0940 (128 F. Supp. 2d 747) (M.D. Pa. February 7, 2001)

ELR Digest

The court holds that a 1989 administrative agreement between a Pennsylvania environmental agency and the owner and operator of a pulp and paper mill that modified the color limits contained in the mill's 1984 national pollutant discharge elimination system (NPDES) permit was invalid and, therefore, the mill is liable under the Clean Water Act (CWA) and the Pennsylvania Clean Streams Law for violating the color limits contained in its 1984 NPDES permit. The 1989 agreement modified and substantially relaxed the mill's color limit obligations as set forth in its NPDES permit. The court first holds that the individuals and groups who filed suit against the operator have standing. They adequately alleged that they have concrete and redressable injuries caused by the operator. The court next holds that an administrative law judge's (ALJ's) decision to grant the mill's supersedas motion to stay the imposition of the color limits set forth in its 2000 NPDES permit pending the outcome of the mill's appeal of the 2000 NPDES permit did not have preclusive effect in this case. Although a supersedas action is akin to a preliminary injunction and preliminary injunctions can have preclusive effect, the ALJ's supersedas findings were not sufficiently firm to persuade the court that there is no compelling reason for permitting the findings to be litigated again.

The court then holds that because the agreement modified the mill's 1984 permit, proper modification procedures should have been followed. Here, no draft permit was issued before the agreement was entered, no fact sheet or statement basis was made public, and no period for public notice was provided. The court next holds that absent these procedures, the state agency could not modify the mill's color obligations and the 1984 permit still applies. Thus, because the mill has repeatedly exceeded the discharge limits contained in its 1984 NPDES permit, the mill is liable under the CWA and the Pennsylvania Clean Streams Law. The court further holds, however, that the mill cannot be held liable for violating the color limits or other obligations set forth in the 1989 agreement because it was invalid.

The full text of this decision is available from ELR (31 pp., ELR Order No. L-338).

Counsel for Plaintiffs
Charles Caldart
National Environmental Law Center
29 Temple Pl., Boston MA 02111
(617) 422-0880

Counsel for Defendant
William H. Gelles III
Ballard, Spahr, Andrews & Ingersoll
1735 Market St., 51st Fl., Philadelphia PA 19103
(215) 665-8500

[31 ELR 20437]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]