United States District Court, Middle District of Pennsylvania
March 18, 1991
GENERAL ELECTRIC ENVIRONMENTAL SERVICES, INC., PLAINTIFF,
ENVIROTECH CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Rambo, District Judge.
Before the court is defendant Envirotech Corporation's
motion to dismiss plaintiff's second cause of action pursuant
to Federal Rule of Civil Procedure 12(b)(6). The motion has
been fully briefed and oral argument was held on February 14,
1991. The Pennsylvania Department of Environmental Resources
("DER") has filed an amicus curiae brief in support of
plaintiff. The motion is therefore ripe for disposition.
According to the complaint of plaintiff General Electric
Environmental Services, Inc. ("GEESI"), in 1981 it purchased
a facility in Lebanon County from Envirotech Corporation, a
facility which GEESI later discovered to be contaminated with
PCBs. GEESI alleges that it has thus far spent in excess of $2
million to clean up the site. These facts will be deemed to be
true for the purpose of this motion.
In October of 1990, GEESI brought suit against Envirotech on
three causes of action: (1) One based on the federal
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. § 9601-9675 ("CERCLA"); (2)
One arising from the Pennsylvania Hazardous Sites Cleanup Act,
35 P.S. §§ 6020.101-6020.1305 ("HSCA"); and (3) One grounded in
state contract law.
Envirotech's motion to dismiss attacks only the second cause
of action, arguing that the HSCA does not create a right of
action for private citizens, but only for the Commonwealth and
other governmental entities, and thus the statute may not be
used to impose liability in a suit between private parties.
The court does not agree, and will deny defendant's motion.
Concerned with the growing danger to the environment posed
by the inadequate and indiscriminate disposal of hazardous
wastes in the Commonwealth, the Pennsylvania General Assembly
in 1988 crafted remedial legislation in order to add teeth to
an existing scheme of laws which had been essentially
regulatory in nature.*fn1 As the General Assembly declared in
outlining the policy behind the statute:
Traditional legal remedies have not proved
adequate for preventing the release of hazardous
substances into the environment or for preventing
the contamination of water supplies. It is
necessary, therefore, to clarify the
responsibility of persons who own, possess,
control or dispose of hazardous substances; to
provide new remedies to protect the citizens of
this Commonwealth against the release of
hazardous substances; and to assure the
replacement of water supplies.
35 Pa.Stat.Ann. § 6020.102(5) (Purdon Supp. 1990). The
legislature also provided:
Extraordinary enforcement remedies and procedures
are necessary and appropriate to encourage
responsible persons to clean up hazardous sites
and to deter persons in possession of hazardous
substances from careless or haphazard management.
Id. at § 6020.102(9).
In considering whether the HSCA provides private parties
with a right of action, the court notes that generally a
statute such as the HSCA should be interpreted liberally to
allow the full effect of its remedial purpose to be realized.
See generally, Chappell v. Pennsylvania Pub. Util. Comm'n,
57 Pa. Commw. 17, 425 A.2d 873, 876 (1981); Commonwealth, Human
Relations Comm'n v. Transit Cas. Ins. Co., 478 Pa. 430,
387 A.2d 58, 62-63 (1978).
I. The Language of the HSCA
Plaintiff and the DER argue that sections 1101 and 702 of
the HSCA, taken together, create a private cause of action for
the recovery of the costs of cleaning a hazardous waste site.
Section 1101 creates the remedy, while § 702 defines the scope
of liability. Section 1101 reads:
A release of a hazardous substance or a violation
of any provision, regulation, order or response
approved by the Department under this act shall
constitute a public nuisance. Any person allowing
such a release or committing such a violation
shall be liable for the response costs caused by
the release or the violation. The board and any
court of competent jurisdiction is hereby given
jurisdiction over actions to recover response
35 Pa.Stat.Ann. § 6020.1101 (Purdon Supp. 1990). This section
does not designate any particular party — the DER or
subsequent innocent landowners, for instance — as being
empowered to bring an action under its auspices or as the party
to whom a violator is liable. See Lutz v. Chromatex, Inc.,
725 F. Supp. 258, 265-266 (M.D.Pa. 1989) ("Unlike Section 507,
Section 1101 is not limited to suits by the Department . . .
Thus, the Act contains no generally applicable prohibition
against private actions for response costs under Section 1101.
. . .") (citation omitted). The court finds persuasive the
argument that the General Assembly, had it desired to limit the
scope of this remedial section to DER actions only, would have
inserted language to that effect, as it had in numerous other
sections in the statute.*fn2
This court is hesitant to read a
limitation into a statutory section where the legislature could
have inserted such language but did not. See Southeastern Pa.
Transp. Auth. v. Weiner, 56 Pa.Commw. 104, 426 A.2d 191, 194
(1981); Key Savings and Loan Assoc. v. Louis John, Inc.,
379 Pa. Super. 226, 549 A.2d 988, 992 (1988), app. denied, 523 Pa. 632,
564 A.2d 1260 (1989), app. granted, 524 Pa. 597,
568 A.2d 1248 (1989).
If § 1101 is the tip of the HSCA spear, § 702 determines the
statute's targets. In defining the scope of liability under the
statute, § 702 states:
(a) General rule: A person who is responsible for
a release or a threatened release of a hazardous
substance from a site as specified in Section 701
is strictly liable for the following response
costs and damages which result from the release
or threatened release or to which the release or
threatened release significantly contributes:
(1) Costs of interim response which are
reasonable in light of the information
available to the Department at the time the
interim response action was taken.
(2) Reasonable and necessary or appropriate
costs remedial response incurred by the United
States, the Commonwealth or a political
(3) Other reasonable and necessary or
appropriate costs of response incurred by any
(4). Damages for injury to, destruction of, or
loss of natural resources within this
Commonwealth or belonging to, managed by,
controlled by or appertaining to the United
States, the Commonwealth or a political
subdivision. This paragraph includes the
reasonable costs of assessing injury,
destruction or loss resulting from such a
(5) The cost of a health assessment or health
35 Pa.Stat.Ann. § 6020.702(a) (Purdon Supp. 1990).
The court believes that § 702(a) through its very language
was intended by the legislature to encompass polluter liability
to private parties. Subsections 702(a)(1) through (a)(3)
discuss an increasingly wide range of parties to whom a
polluter may be liable. Section 702(a)(1) allows for recovery
by the DER of response costs which are reasonable in light of
its knowledge at the time of the response action. Section
702(a)(2) permits redress for costs incurred by the federal
government, the Commonwealth, and the governments of the
various political subdivisions within the Commonwealth. Then, §
702(a)(3) empowers "any other person" to recover reasonable and
necessary cleanup costs. Section 103 of the HSCA, the statute's
definitional section, defines a "person" as:
An individual, firm, corporation, association,
partnership, consortium, joint venture,
commercial entity, authority, interstate body or
other legal entity which is recognized by law as
the subject of rights and duties. The term
Federal Government, state governments and
35 Pa.Stat.Ann. § 6020.103 (Purdon Supp. 1990). Obviously, the
scope of the term "person" within the meaning of the statute
encompasses more than governmental bodies. If, as defendant
urges, subsection (a)(3) were read as establishing liability
only to government entities, then (a)(3) would merely be a
restatement of the liabilities established by the previous two
sections. This is an incongruous result and cuts against the
plain meaning of the words as defined by the statute. See
Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662, 664 (1983)
(construction of statutory provision which renders it
meaningless not favored in Commonwealth); 1 Pa. Cons. Stat.Ann.
§ 1922(2) (Purdon Supp. 1990) ("the General Assembly intends
the entire statute to be effective and certain."); id. at §
1921(a) ("Every statute shall be construed, if possible, to
give effect to all its provisions.").*fn3
Defendant argues that this interpretation of § 702(a) is
undercut by the legislative history of the HSCA. The original
draft of the HSCA, House Bill 1852, was passed by the
Pennsylvania House of Representatives on June 7, 1988. It
contained a provision, § 509, which provided a broad cause of
action for private parties against polluters:
Any persons responsible for a release of a
hazardous substance under this act shall also be
strictly liable for any personal injury or
property damage resulting from the release or for
any response costs incurred which are not
inconsistent with a departmental action pursuant
to Section 505.
H.B. 1852, Printer's No. 3428 at 41-42, 37 House Legislative
Journal at 991-1039. However, after passing the house, this
section was later deleted by the Senate Environmental
Resources and Energy Committee, although § 507, which similarly
empowered government agencies, was retained. H.B. 1852,
Printer's No. 3558. Defendant takes pains to point out that
this provision includes, along with terms creating liability
for personal injury and property damage, language which imposes
strict liability for response costs — just as § 702(a) does.
This amendment was approved by the Joint Conference Committee,
(Printer's No. 3809), see 51 Senate Legislative Journal 2552
(July 5, 1988); Report of the Committee of Conference on H.B.
1852, Printer's No. 3809, and adopted by both houses. See House
and Senate Legislative Journals for October 18, 1988. In that
form, the bill was signed into law.
Therefore, defendant concludes, as the legislature
deliberately omitted a provision authorizing private party
suits, it obviously did not intend to invest such power in
§ 702. The court is not prepared to make such a sweeping
conclusion. In deleting the provision in § 509 granting private
parties the right to recover response costs along with
provisions authorizing suit for personal injury and property
damages, the legislature may well have been excising language
which was redundant of the liability-imposing language of §
702(a)(3). Certainly, the language of § 702(a)(3) suggests the
creation of a right to recover response costs in private
citizens. A similar right of action left alone in § 509 would
simply be restating a right already granted under § 702(a)(3).
The deletion of a statutory provision, under Pennsylvania law,
does not necessitate the wholesale elimination of the subject
of that provision from the statute. See Pennsylvania Retailers'
Assocs. v. Lazin, 57 Pa. Commw. 232, 426 A.2d 712, 715-16, 718
(1981) (in a situation where a federal statute was the model
for a state counterpart, deletion of one provision did not
permit court to ignore express language of other sections of
In addition, the legislative history of CERCLA evidences
that a similar deletion of a private party empowerment section
did not deter courts from interpreting the statute as
authorizing a private party action for cost recovery. In
Artesian Water Co.
v. Government of New Castle County, 659 F. Supp. 1269, 1285-86
(D.Del. 1987), aff'd, 851 F.2d 643 (3d Cir. 1988), a district
court in Delaware noted that, "[a]s reported from the
committee, the leading Senate Superfund bill, S. 1480, provided
a private cause of action for all damages for economic loss or
loss due to personal injury. . . . The version of S. 1480
debated on the Senate floor, however, was a substitute bill
that differed markedly. . . . [Plaintiff's] claims for cost
recovery must therefore be viewed in light of the fundamental,
if elusive, distinction between response costs and economic
losses." Similarly, a court in the Eastern District of
Pennsylvania stated with regard to CERCLA in City of
Philadelphia v. Stepan Chem. Co., 544 F. Supp. 1135, 1142
(E.D.Pa. 1982) that "[w]hat was enacted and signed into law is
a severely diminished piece of compromise legislation from
which a number of significant features were deleted. . . ."
This included, according to a footnote, a "federal cause of
action for medial expenses and property damage. . . ." Id. at
1142 n. 9. However, the court also remarked that "it is clear
from the discussions which preceded the passage of CERCLA that
the statute is designed to achieve one key objective — to
facilitate the prompt cleanup of hazardous dump sites . . .,"
and that private recovery action were a significant means to
vindicate that purpose. Id. at 1143.
Given both the clear language of § 702(a) and the parallel
history of CERCLA, the court does not find the legislature's
deletion of § 509 indicative of an intent to erase any trace of
a private party right to sue in the HSCA.
Defendant also contends that HSCA's declaration of policy
militates against reading into the statute any private cause
of action. Defendant cites § 102(12)(ii) which states:
(12) The following are the purposes of this act:.
(ii) Establish independent authority for the
department . . . to take other appropriate
response actions and recover from responsible
persons its costs for conducting the responses.
35 Pa.Stat.Ann. § 6020.102(12)(ii) (Purdon Supp. 1990). It is
true that private parties and the creation of a private right
of action are not singled out in the declaration of policy
while the DER is. This is not determinative or even
particularly convincing, however, as other important provisions
of the HSCA are likewise not mentioned specifically in the
policy section. For instance, in §§ 304-308, the legislature
provided for a scheme of training for municipal officials,
along with other guarantees, and created a fund to provide
municipalities hosting hazardous waste sites with financial
assistance to ensure the safety of the sites. At no place in
the declaration of policy are these lengthy sections discussed.
In fact, the concept of a private right of action for the
recovery of response costs fits cleanly within the broad
purposes outlined by the General Assembly elsewhere in § 102:
Traditional legal remedies have not proved
adequate for preventing the release of hazardous
substances into the environment or for preventing
the contamination of water supplies. . . . It is
therefore necessary to provide new remedies to
protect the citizens of the Commonwealth against
the release of hazardous substances. . . .
35 Pa.Stat.Ann. § 6020.102(5) (Purdon Supp. 1990).
"Extraordinary enforcement remedies and procedures are
necessary and appropriate. . . ." Id. at § 6020.102(9); see
supra at 115. The point of the enactment of the HSCA was to arm
the Commonwealth and its citizens with a legal sledgehammer to
bring violators of hazardous waste regulations to justice, to
award remuneration for cleanup costs incurred, and to deter
other potential violators. The absence of private party suits
from specific mention in the declaration of policy does not
mean that this valuable enforcement tool was to be excluded,
but rather that they were encompassed within the broad
directives of the act.
II. Comparison to CERCLA
The court is also swayed by the similarity of the HSCA to
its federal counterpart CERCLA, 42 U.S.C. § 9601-9675,
which has universally been interpreted as providing a private
right of action for the recovery of response costs. As a
departure point, the court notes that under Pennsylvania law
it may consider the interpretation of similar statutes in
order to interpret a Pennsylvania statute. See 1 Pa.
Cons.Stat.Ann. § 1921(c)(5) (Purdon Supp. 1990); Commonwealth,
Dep't of Transp. v. Von Altimus, 49 Pa. Commw. 245,
410 A.2d 1303, 1305 (1980).
Portions of the HSCA were apparently modeled after CERCLA.
As with the federal statute, the HSCA establishes a fund for
the cleanup of hazardous waste sites, compare HSCA § 901, 35
Pa.Stat.Ann. § 6020.901 (Purdon Supp. 1990) and CERCLA § 111,
42 U.S.C. § 9611, empowers governmental authorities to
investigate those sites and impose the necessary remedies,
compare HSCA § 501, 35 Pa.Stat.Ann. § 6020.501 (Purdon Supp.
1990) with CERCLA § 104, 42 U.S.C. § 9604, and sets up
standards for the cleanup of the toxic sites, compare HSCA §
504, 35 Pa.Stat.Ann. § 6020.504 (Purdon Supp. 1990) with CERCLA
§ 121, 42 U.S.C. § 9621. Further, under both statutes, the
agencies are empowered to demand cleanup of hazardous waste
sites without judicial review, and any eventual review by the
courts is not de novo but based on the study of an
"administrative record," compare HSCA § 508(c), 35 Pa.Stat.Ann.
§ 6020.508(c) (Purdon Supp. 1990) with CERCLA § 113(j),
42 U.S.C. § 9613(j), violators are identified under broad terms,
compare HSCA §§ 702 and 705, 35 Pa.Stat.Ann. §§ 6020.702 and
.705 (Purdon Supp. 1990) with CERCLA §§ 107 and 113(f),
42 U.S.C. § 9607 and 9613(f), defenses for violators are narrowly
circumscribed, compare HSCA § 703, 35 Pa.Stat.Ann. § 6020.703
(Purdon Supp. 1990) with CERCLA § 107(b), 42 U.S.C. § 9607(b),
and special settlement mechanisms are put in place to encourage
cooperation by potential responsible parties, compare HSCA §§
705-07, 35 Pa.Stat.Ann. § 6020.705-07 (Purdon Supp. 1990) with
CERCLA § 122, 42 U.S.C. § 9622. In addition, the HSCA makes
numerous references to CERCLA. See, e.g., HSCA §§ 102(7)-(8),
(12), 103, 301(2), (6), (7), (14), 502(a)(1), (e)(2), 504(a)
and (b), and 705(d).
Importantly, the section of CERCLA which has been
interpreted as providing an individual right of action
proffers language nearly identical to that in § 702(a)(4) of
the HSCA. CERCLA § 107 provides that responsible parties:
shall be liable for
(A) all costs of removal or remedial action
incurred by the United States Government or a
State or an Indian tribe not inconsistent with
the national contingency plan;
(B) any other necessary costs of response
incurred by any other person consistent with
the national contingency plan; . . . .
42 U.S.C. § 9607(a)(4).
Like § 702(a)(3), CERCLA § 107(a)(4)(B) does not specifically
provide for a private right of action to recover response
costs. Nevertheless, numerous courts have interpreted the
CERCLA section as creating just that. Chemical Waste
Management, Inc. v. Armstrong World Indus., 669 F. Supp. 1285
(E.D.Pa. 1987); Artesian Water Co. v. Government of New Castle
County, 605 F. Supp. 1348, 1355-56 (D.Del. 1985) (rejecting
arguments that previous deletion of private cause of action
sections for tort and property damages also abrogated action
for response costs); City of Philadelphia v. Stepan Chem. Co.,
544 F. Supp. 1135, 1142-43 (E.D.Pa. 1982) ("The liability
provision is an integral part of the statute's method of
achieving this [remedial] goal for it gives a private party the
right to recover its response costs. . . ."). See also Walls v.
Waste Resource Corp., 761 F.2d 311, 318 (6th Cir. 1985)
(emphasizing the importance of private party cleanups, the
court noted that "[a]llowing a private action to recover
response costs from responsible parties under [§ 107] is thus
consistent with the language of [§ 107] and with the
congressional purpose underlying CERCLA as a whole.").
The court is not persuaded by the argument made by counsel
for defendant at oral argument that the language in §
107(a)(4)(B) stating that actions must be
brought pursuant to the National Contingency Plan makes the
CERCLA section distinguishable from the HSCA section.
Defendant asserts that the National Contingency Plan, found at
40 C.F.R. § 300, outlines standards for the response to and
clean up of hazardous waste releases which parties are required
to perform before being authorized to bring suit, standards
which are not present in the HSCA. The court finds that the
standards which are present in the § 702(a)(3) of the act —
that the response costs be "reasonable and necessary or
appropriate " — is enough of a guide to courts to determine if
the granting of response costs is wise.
The court finds it highly persuasive that the federal
statute, with very similar wording to the HSCA, has been
consistently interpreted in this circuit and others as
authorizing private parties to sue violators of the act for
Moreover, the court presumes that the Pennsylvania General
Assembly understood the state of the law governing hazardous
waste regulation and remedies when it enacted the HSCA,
including that the CERCLA liability provision § 107(a)(4)(B),
on which it had patterned the HSCA § 702(a)(3), was time and
again being interpreted as providing a right of action to
private persons. The court finds it telling that the
legislature, armed with this knowledge, did not specifically
prohibit private party actions in § 702 or any other section of
the HSCA if that was the effect it desired.
III. Weight Given to the Interpretation of the DER
Finally, the court is inclined to give a quantity of
credence to the position of Pennsylvania Department of
Environmental Resources, the agency charged with administering
the regulations and remedies under the HSCA, which has weighed
in heavily in favor of permitting private actions under the
act. See Spicer v. Commonwealth, Dep't of Pub. Welfare,
58 Pa. Commw. 558, 428 A.2d 1008, 1009 (1981); Dear v. Holly Jon
Equip. Co., 283 Pa. Super. 74, 423 A.2d 721, 725 (1980) (court
should give deference in interpretation to the governmental
agency empowered to administer a law). Here, the DER has
outlined a number of arguments in favor of finding that the
HSCA creates a private cause of action. In addition, the
department has stated categorically in its amicus brief and at
oral argument that private party suits under the HSCA will
greatly enhance the effectiveness of its efforts to clean up
hazardous waste sites throughout the Commonwealth.
IV. Effect of Lutz v. Chromatex
In arguing that no private cause of action exists under the
HSCA, defendant relies heavily on a case decided by Judge
Nealon of this district, Lutz v. Chromatex, Inc., 730 F. Supp. 1328
(M.D.Pa. 1990) (Chromatex II).*fn4 In Chromatex II, Judge
Nealon explicitly found that the HSCA provided no cause of
action to parties other than governmental entities, and
dismissed plaintiff's HSCA claim. This court respectfully
disagrees with Judge Nealon's analysis, and opts not to follow
The Chromatex II court placed a great deal of emphasis on a
comparison of the HSCA with the Pennsylvania Solid Waste
Management Act, 35 Pa.Stat.Ann. §§ 6018.101-6018.1003 (Purdon
Supp. 1990) ("SWMA"). The court found the "Enforcement and
Remedies" sections of the two statutes to be alike in "language
and structure," and pointed out that in other corresponding
sections of the two acts the "person" responsible for enforcing
the substantive provisions was the DER. 730 F. Supp. at 1332.
The interests of private citizens, reasoned the court, were
provided for in both statutes by permitting them the right to
intervene in actions brought by the
government. Id. Private party actions under the SWMA, the court
noted, were specifically disapproved of by the Pennsylvania
Superior Court in Fleck v. Timmons, 374 Pa. Super. 417,
543 A.2d 148 (1988).
This court, however, agrees with plaintiff and the DER that
the SWMA and the HSCA are fundamentally different in purpose
and effect, and thus the absence of a private right of action
in the former should not control whether a court should find
such a right of action in the latter. The SWMA and the HSCA
envision two wholly separate and distinct schemes attacking
different problems. This necessitates divergent remedies.
The SWMA is aimed at regulating the disposal and maintenance
of solid waste. A host of regulations found at 25 Pa. Code
§§ 260.1 et seq. enacted pursuant to the SWMA set out the
requirements for operation of hazardous waste disposal
facilities which are monitored and controlled by facets of the
DER. Given the heavy emphasis of government in a watchdog role
under the SWMA along with the regulatory nature of its
provisions and regulations, it is natural that the rights and
responsibilities for enforcing these provisions lay with the
government and not individuals.
In contrast, the HSCA was enacted specifically for remedial
purposes — to create new remedies to address the growing
problem of contamination through the dumping of hazardous
waste, problems which were not being controlled by the SWMA.
See supra at 115. Indeed, to a large extent, the HSCA does not
apply to sites affected by the SWMA. Section 1301(a) of the act
states that "an identified and responsible owner or operator of
a site with a release or threatened release of a hazardous
substance or a contaminant, shall not be subject to enforcement
orders or the cost recovery provisions of this act, until the
department has instituted administrative or judicial
enforcement action against the owner or operator under other
applicable environmental laws. . . ." 35 Pa. Cons.Stat.Ann. §
6020.1301(a) (Purdon Supp. 1990). This section shows the use of
the HSCA as a "gap filler" for other environmental laws — the
department cannot apply many of the HSCA's enforcement remedies
until the DER first pursues relief under other laws, such as
the SWMA. The HSCA is a complement to, not a mirror image of,
the SWMA, invested with a separate purpose and separate
remedies. Therefore, the court is not persuaded that the lack
of a private cause of action in the SWMA is decisive of whether
private parties can sue under the HSCA, and thus the court
declines to follow Chromatex II.