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PENNSYLVANIA URBAN DEV. CORP. v. GOLEN

March 16, 1989

PENNSYLVANIA URBAN DEVELOPMENT CORPORATION
v.
STEWART GOLEN and HANCOCK WASTE REMOVAL, INC.



The opinion of the court was delivered by: KELLY

 JAMES McGIRR KELLY, UNITED STATES DISTRICT JUDGE

 Plaintiff Pennsylvania Urban Development Corporation (PUDC) seeks reconsideration of the Memorandum and Order dated November 18, 1988 granting summary judgment to defendants Stewart Golen and Hancock Waste Removal, Inc. and denying plaintiff PUDC's motion for partial summary judgment. In the motion for reconsideration, PUDC requests that this court: (1) declare Hancock liable to PUDC for all response costs incurred by PUDC consistent with the National Contingency Plan in connection with the investigation and cleanup of PCBs at the site; (2) declare that all necessary and reasonable costs incurred by PUDC in removing soil containing detectable concentrations of PCBs from the site are in compliance with the United States Environmental Protection Agency's PCB Spill Cleanup Policy, 40 C.F.R. §§ 761.120 to 761.135 (1987); (3) all costs of investigations into the nature and extent of PCB contamination at the site already incurred by PUDC are consistent with the National Contingency Plan; and (4) declare Stewart Golen to be jointly and severally liable with Hancock if PUDC can show that Stewart Golen is an "operator" of a "facility" on the site within the meaning of 42 U.S.C. § 9607(a)(1) or (2).

 PUDC seeks reconsideration on the two following grounds: first, PUDC acquired legal title to the property located at 404-444 Brown Street, Philadelphia, Pennsylvania on November 7, 1988 (hereinafter referred to as "site") and as owner of the property falls within the category of "covered persons" set forth in 42 U.S.C. § 9607(a); second, PUDC has standing to assert a cost recovery action pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq., because Artesian Water Co. v. New Castle County, 659 F. Supp. 1269 (D.Del. 1987) does not require a CERCLA plaintiff to be a "covered person" within the meaning of 42 U.S.C. § 9607 (a)(1).

 BACKGROUND

 The complaint in this matter was filed on May 19, 1988. *fn1" Oral argument was held on October 14, 1988. At the conclusion of the oral argument, I permitted the parties leave to supplement the motions for summary judgment. I specifically suggested that the plaintiff submit to the court any agreement in place regarding the conveyance of ownership of the property. PUDC filed a supplemental reply memorandum arguing that the agreement in principle dated August 24, 1988 entered into between PUDC and Mark Golen established that PUDC gained an equitable interest in the property. As plaintiff provided evidence only of the agreement in principle dated August 24, 1988, this court entered a Memorandum Opinion and Order on November 18, 1988 granting defendants' motion for summary judgment and thereby entering judgment against plaintiff, in part, on the grounds that PUDC had failed to establish an equitable interest in the property.

 DISCUSSION

 A principal case relied upon by PUDC is Artesian Water Co. v. Government of New Castle County, 659 F. Supp. 1269 (D.Del. 1987) aff'd, 851 F.2d 643 (3d Cir. 1988). Therefore, I will address plaintiff's arguments for reconsideration of this court's application of Artesian. As plaintiff points out in its motion for reconsideration, the defendant in Artesian was New Castle County (the County). 659 F. Supp. at 1274. The Artesian court stated:

 
In the instant case Artesian's prima facie claim for cost recovery under section 107(a)(4)(B) consists of the following elements:
 
(1) The County must fall within one of the four categories of 'covered persons.' CERCLA § 107(a), 42 U.S.C. § 9607(a).
 
(2) There must have been a release or a threatened release of hazardous substances from the Site. Id. § 107(a)(4), 42 U.S.C. § 9607(a)(4); see id. §§ 101(14), (22), 42 U.S.C. §§ 9601(14), (22).
 
(3) The release or threatened release must have caused Artesian to incur costs. Id. § 107(a)(4), 42 U.S.C. § 9607(a)(4).
 
(4) Artesian's costs must be necessary costs of response. Id. § 107(a)(4)(B) 42 U.S.C. § 9607(a)(4(B); see id. §§ 101(23)-(25), 42 U.S.C. §§ 9601(23)-(25).
 
(5) Artesian's response actions must be consistent with the National Contingency Plan. Id. § 107(a)(4)(B), ...

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