The opinion of the court was delivered by: Conaboy, Chief Judge.
A. Factual Background
B. Procedural Background
A. The Pennsylvania Hazardous Sites Cleanup Act
1. Lutz v. Chromatex, Inc. — No Private Cause of
2. General Electric v. Envirotech, Corp. — A Private
Cause of Action
B. Analogous Federal Standard for Private Cause of Action
1. Special Class
2. Legislative Intent
3. Purpose and Scheme
This is the second in a series of memoranda on litigation
stemming from the Marjol/Gould Battery plant located in
Throop, Pennsylvania. This particular memorandum concerns the
motion for partial summary judgment filed by Defendant Gould,
Inc. on the application of the Pennsylvania Hazardous Sites
Cleanup Act, 35 Pa.S.A. §§ 6020.101-6020.1305 ("HSCA"), to the
claims in Toole v. Gould, Inc., Civ. No. 89-0576 (M.D.Pa. filed
April 21, 1989).*fn1 For the reasons stated below, this court
finds that a private cause of action exists under HSCA. Thus,
to the extent Defendant Gould seeks to have judgment entered in
it favor on the claims presented under HSCA, its motion will be
From 1962 through 1982, a battery crushing and lead
processing facility was operated by the Marjol Battery and
Equipment Company ("Marjol") in Throop, Pennsylvania. In May,
1980, Gould, Inc. ("Gould") purchased the facility from Mr.
Lawrence Fiegleman, the former owner of Marjol. For a period
of two years, beginning in May 1980 and ending in April 1982,
Gould ran the processing plant.
Operations ceased at the facility in 1982, however, when the
federal and state governments determined that lead exposure in
the area caused an imminent and substantial endangerment to
the public and to the environment. The United States
Environmental Protection Agency ("EPA") and Gould subsequently
entered into a consent agreement in April of 1982 providing
for the clean-up of the area and certain contaminated
properties located near the plant. Under the terms of the
agreement, Gould has conducted an extensive response action at
the site and the surrounding properties.
In the aftermath of the response activities by the
government and Gould, several individuals brought suit to
recover costs and damages to themselves and their properties.
In this case, the Plaintiffs brought a six (6) count complaint
based on the following causes of action:
A. Count I — Comprehensive Environmental
Response, Compensation and Liability Act of
B. Count II — Violations of the
Pennsylvania Hazardous Sites Cleanup Act, P.L.
C. Count III — Strict Liability for
abnormally dangerous and/or ultrahazardous
E. Count V — Common Law Nuisance and
Nuisance per se as violations of the
Pennsylvania Clean Streams Act and Pennsylvania
Solid Waste Management Act.
F. Count VI — Trespass as a direct physical
interference with the person or property of
After a series of dispositive motions were filed seeking the
dismissal of or judgment entered concerning various counts of
the complaint, this court issued a memorandum and order on
November 13, 1990, addressing the Plaintiffs' CERCLA claims.
Ambrogi, supra at note 1. The present memorandum addresses
Count II of the Toole complaint concerning the application of
the Pennsylvania Hazardous Sites Cleanup Act.
A. The Pennsylvania Hazardous Sites Cleanup Act
Defendant Gould has moved for judgment on all claims
presented under the Hazardous Sites Cleanup Act. The Defendant
maintains that any action under HSCA by the Plaintiffs is
inappropriate since a private cause of action was not provided
for by the Pennsylvania General Assembly.
The proposition that a private cause of action does not
exist under the Act, either explicitly or by implication, has
been upheld by both federal and state court decisions. See Lutz
v. Chromatex, et al., 730 F. Supp. 1328 (M.D.Pa. 1990)*fn2;
Fallowfield Development Corp., et al. v. Strunk, Civ. No.
89-8644, slip op., 1990 WL 52745 (E.D.Pa. April 23, 1990),
Pennsylvania Journal of Environmental Litigation, McGuire
Publications, Volume ___, Number ___ (April 1990)*fn3; Vogel
Disposal Services, Inc. v. Napco, Inc., A.D. No. 89-796, slip
op. (C.P. Butler County, July 16, 1990). It is not, however, an
undisputed conclusion universally embraced by all authorities.
See General Electric Environmental Services, Inc. v. Envirotech
Corporation, 763 F. Supp. 113 (M.D.Pa. 1991) (Rambo, J.), 1991
WL 69417; Mattioni, Pennsylvania Environmental Law Handbook
(2nd Edition 1990) at 203-205; Prendergast, Environmental
Private Rights of Action in Pennsylvania, 42-51 (Pa.Bar Instit.
1991); See also, amicus curiae brief of Pennsylvania Department
of Environmental Resources in Fry, et al. v. Leech Tool &
Dieworks, Inc., A.D. No. 90-403 (C.P. Crawford County).
After reviewing the above cited matters, it would appear
that there are two substantive sources representing the
divergent opinions on this subject. They can be found in the
Middle District of Pennsylvania cases of Lutz II & III and
Envirotech, supra. Each are comprehensive and well structured
decisions delineating the arguments for and against finding a
private cause of action. There is little we can add to each and
find it best to fully review them separately.
1. Lutz v. Chromatex, Inc. No Private Cause of
It had been suggested by the Plaintiffs that the liability
provision of section 702 standing alone creates a private
right of action. In the alternative, it was further argued
that section 702 in conjunction with either section 507 or
section 1101 provide for such a right.
In its analysis, the Lutz II court expressly rejected the
argument that section 702(a)(3) by itself provides a private
remedy for the recovery of response costs. Lutz, 725 F. Supp. at
264-265. Plaintiffs argued that section 702(a)(3) of HSCA
contained language identical to that in section 107(a)(4)(B) of
the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. § 9607(a)(4)(B), which has
been uniformly held to create a private cause of action to
recover response costs.*fn7 In rejecting the argument, the
Lutz court cites two primary reasons. First, section 702(a) of
HSCA and section 107(a) of CERCLA are not identical since the
federal provision begins with a broad, all encompassing preface
in HSCA.*fn8 Id. citing Pinole Point Properties, Inc. v.
Bethlehem Steel Corp., 596 F. Supp. 283, 288 (N.D.Cal. 1984).
Second, section 107 and other sections of CERCLA specifically
refer to actions brought under section 107, whereas HSCA merely
refers to civil actions brought under sections 507 and 1101,
not section 702. Id. at 265.
At the conclusions of Lutz II, the court left open the
possibility that a private cause of action may exist by the
interaction of sections 1101 and 107. That door was closed,
however, in Lutz III, 730 F. Supp. 1328 (M.D.Pa. 1990). In its
final rejection of the private right theory, Lutz III examined
the language of HSCA, compared it with the provisions of the
Pennsylvania Solid Waste Management Act ("SWMA"), and attempted
to interpret the legislative history in order to gauge the
intent of the General Assembly.
First, the court compared HSCA with the language contained
in the SWMA, concentrating on the enforcement and remedies
section of the two statutory schemes. It was determined that
while the statutory enforcement provisions were not identical,
those provisions that were similar led the court to find that,
like the SWMA, no private cause of action was contained under
In coming to this conclusion, the court relied extensively
on the case of Fleck v. Timmons, 374 Pa. Super. 417,
543 A.2d 148 (1988), in which the Pennsylvania Superior Court held that
no private cause of action was contained under the SWMA. Making
a parallel comparison to the language of the SWMA, and finding
guidance from the reasoning set forth in Fleck, the Lutz III
court determined that when enacting HSCA, the Pennsylvania
General Assembly consistently indicated that the Commonwealth's
Department of Environmental Resources ("DER") was the
responsible party for pursuing the specific remedies and
enforcement techniques provided for under both the SWMA and
HSCA. Thus, the General Assembly delegated to the DER the
enforce authority of these environmental statutes. The
participation of private citizens, however, was left to a right
of intervention as provided in section 6018.615 of the SWMA and
section 6020.1111 of HSCA.
After analyzing the specific language of the statute, the
court bolstered its conclusion by looking to the legislative
history of HSCA. Particularly, the court concentrated on the
fact that the General Assembly deleted a section from an
earlier version of the HSCA bill which expressly granted a
private cause of action for response costs. Lutz, 730 F. Supp.
at 1332 citing H.B. 1852, Printer's No. 3428, section 509.
Thus, the court maintained that the legislature considered the
inclusion of a private right of action, but acted to exclude
such a right.
Finally, in addition to the deleted section of the initial
bill, the court pointed to HSCA's declaration of policy. Under
section 6020.102, it states, in relevant part:
(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.
Id. at 1333, citing 35 Pa.S.A. § 6020.102(12)(ii). (emphasis
added) In this expressed pronouncement, the court found that
since DER, and no other, is named by the legislature, that
agency is entrusted with the authority to enforce the
provisions of the Act, save the intervention and citizen suit
2. General Electric Environmental Services v.
Envirotech, Corp. — A Private Cause of Action
Over one year later, in General Electric Environmental
Services, Inc. v. Envirotech Corp., 763 F. Supp. 113 (M.D.Pa.
1991) (Rambo, J.), the court came to a contrary conclusion and
held that a private cause of action exists under the Hazardous
Sites Cleanup Act. Although Envirotech acknowledged the Lutz
decisions, the court respectfully disagreed with its reasoning
and outlined a comprehensive rebuttal.
The basis for the Envirotech court's decision lies in
consideration of the actual language of the Hazardous Sites
Cleanup Act; its legislative history; a comparison to the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980; and a showing of deference to the
enforcing agency, the Pennsylvania Department ...