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.
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 ...