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TOOLE v. GOULD

United States District Court, Middle District of Pennsylvania


May 22, 1991

JOHN TOOLE, ET AL., PLAINTIFFS,
v.
GOULD, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Conaboy, Chief Judge.

MEMORANDUM AND ORDER

  I. Introduction
      A. Factual Background
      B. Procedural Background
 II. Discussion
      A. The Pennsylvania Hazardous Sites Cleanup Act
        1. Lutz v. Chromatex, Inc. — No Private Cause of
           Action
        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
III. Conclusion

I

Introduction

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 denied.

A.  Factual Background

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.

B.  Procedural Background

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
    1980 (CERCLA).

  B. Count II — Violations of the
    Pennsylvania Hazardous Sites Cleanup Act, P.L.
    No. 108.

  C. Count III — Strict Liability for
    abnormally dangerous and/or ultrahazardous
    activities.

  D. Count IV — Common Law Negligence and
    Negligence per se as violations of

    the Pennsylvania Clean Streams Act and
    Pennsylvania Solid Waste Management Act.

  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
    another.

Complaint, Doc. No. 1.

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.

II

DISCUSSION

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
      Action

In Lutz v. Chromatex, Inc., 725 F. Supp. 258 (M.D.Pa. 1989) (Lutz II), the court considered for the first time the issue of whether a private cause of action accrues under HSCA. Concentrating mainly on the language of the statute, three particular sections of HSCA were examined: section 702 on the scope of liability*fn4; section 507 on the recovery of response costs*fn5; and section 1101 concerning public nuisances.*fn6

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 not included 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 HSCA.

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 segments.

Thus, based on a comparison of the Solid Waste Management Act and the Hazardous Sites Cleanup Act; the interpretation of Pennsylvania courts as to the restrictive nature of the terms contained under the Solid Waste Management Act; and the actual language of HSCA under its declaration of policy, the court concluded that no private cause of action exists under the Hazardous Sites Cleanup Act.

  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 of Environmental Resources, which supports the finding of a private right of action.

The court began its analysis by looking to the Act's declaration of policy emphasizing that traditional legal remedies are not adequate and extraordinary enforcement remedies are needed to achieve the appropriate cleanup of hazardous waste sites. Envirotech, supra at 115 citing 35 Pa.S.A. § 6020.102(5) and (9). Acknowledging that such remedial statutes should be liberally construed to achieve their purpose, the court then turned to other provisions of HSCA.

Citing section 1101 as the "tip of the HSCA spear", the court found it to be the source of a private party's right to seek recovery for violations of the Act. The scope of that recovery, or what the Envirotech court termed the "target" of the Act, is found under section 702.*fn9 In explaining such a reading of section 702, the court found:

  If, as the defendant urges, subsection (a)(3)
  were read as establishing liability only to
  government entities, then (a)(3) would merely be
  a restatement of the liability 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.

Envirotech, supra at 117, citing Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662, 664 (1983); 1 Pa. C.S.A. § 1922(a). In finding that section 702(a)(3) allows for a private right of action, the court believed that it was following the traditional rules of statutory interpretation by giving full meaning to the words of the statute without obtaining an absurd or inconsistent result.

As for the legislative history and, in particular, the deletion of the section concerning private causes of action, the court gives an alternative explanation to that provided in Lutz III:

  In deleting the provision in Section 509*fn10
  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 Section 702(a)(3).
  Certainly, the language of Section

  702(a)(3) suggests the creation of a right to
  recover response costs in private citizens. A
  similar right of action left alone in Section 509
  would simply be restating a right already granted
  under Section 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.

Envirotech, supra, at 117. (footnote added and citations omitted)

More importantly, the court in Envirotech diverges from Lutz III by comparing HSCA's legislative history in terms of its federal counterpart, the Comprehensive Environmental Response, Comprehensive and Liability Act of 1980. Specifically, the court emphasized that a similar deletion of a private party empowerment provision for personal injury, economic expenses, and medical costs in the federal act did not deter courts from interpreting the statute as authorizing a private right of action for response costs. Envirotech, supra at 117.

The court continues to rebut the arguments presented in Lutz III by also stressing that too much emphasis was placed on section 102(12)(ii) of HSCA's declaration of policy. See 35 Pa.S.A. § 6020.102(12)(ii). Although this particular provision stresses the authority of the DER to take appropriate response action and to recover costs, Envirotech does not find this to be outcome determinative as to the full scope of the Act. The court notes that not all important provisions of HSCA are specifically mentioned in the policy section and several examples are then provided in the text of the opinion. Envirotech at 118. Instead the court emphasizes that the concept of a private right of action is in harmony with the overall design of the Act — i.e., "to arm the Commonwealth and its citizens with a legal sledgehammer to bring violators of hazardous waste regulations to justice, to award remunerations for cleanup costs incurred, and to deter other potential violators." Id. at 118 citing 35 P.S.S.A. § 6020.102(5) and (9).

In addition, under Pennsylvania rules of statutory construction, a court may consider the interpretation of similar statutes in order to interpret a State statute. The Envirotech court concluded that the appropriate statute to compare HSCA is not the regulatory Solid Waste Management Act, but rather, the remedial federal statute known as CERCLA. Similar provisions of HSCA and CERCLA are cited, including direct references in HSCA to CERCLA. Envirotech at 118-119. Any differences cited by the defendant, including the lack of reference to a CERCLA type contingency plan, were found to be inconsequential. Id. The court noted that the legislature is presumed to know the state of the law when it enacted HSCA. As such, the legislators would have been aware of the provision that created a private right of action in CERCLA. Thus, by enacting a similar provision in HSCA, the General Assembly must have intended the same result — i.e., that a private right of action would be created under the state statute. Id. at 119.

Finally, the court looked to the interpretation given by the Pennsylvania Department of Environmental Resources as to private causes of action under HSCA. As provided for under Pennsylvania law, the agency charged with administering a statute's regulations and remedies should be given deference as to its interpretation of the act's provisions. Envirotech at 120. (citations omitted) The amicus curia brief filed by the DER in Envirotech lays out a number of arguments in favor of finding a private right of action. Thus, the court relies on the DER's interpretation as one more reason to find a private right under the Hazardous Sites Cleanup Act of Pennsylvania.

B.  Analogous Federal Standard for Private Cause of Action

In both Lutz and Envirotech, the court used the words of the statute as well as its legislative history but came to differing conclusions as to whether a private cause of action exists under HSCA. In each case, the judge believed that the result reached was consistent with the language of the Act, appropriate in light of the legislative intent, and necessary to promote the statute's policy and effectiveness. It is obviously a matter upon which reasonable minds may differ.

In our attempt to reach a decision on this issue, we find it helpful to look to an analogous source on a related subject — i.e., the standard used by the federal judiciary for determining whether a private cause of action can be inferred within the purviews of a federal statute. The development of this standard is a relatively recent occurrence and has been adopted by some state courts, although Pennsylvania has not explicitly done so. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087-88, 45 L.Ed.2d 26 (1975); In the Matter of the State Commission of Investigation, 108 N.J. 35, 527 A.2d 851 (1987); Jalowiecki v. Leuc, 182 N.J. Super. 22, 440 A.2d 21, 25-28 (1981); Mann v. Oppenheimer & Co., 517 A.2d 1056, 1063-1066 (Del.Supr. 1986); Lock v. Schreppler, 426 A.2d 856, 864-867 (Del.Super. 1981); Couch v. Delmarva Power & Light Co., 1991 WL 40874 (Del. Ch. March 20, 1991).

Under this standard, the courts have found that some combination of the following factors must be present in order to establish a private right of action:

  (1) the plaintiffs are part of the class for
      whose special benefit the statute was passed;

  (2) the indicia of legislative intent reveals
      congressional purpose to provide a private
      cause of action;

  (3) a cause of action would further the
      underlying purposes of the legislative
      scheme; and

  (4) Is the cause of action one traditionally
      relegated to state law so that it would be
      inappropriate to infer a cause of action
      based solely on federal law?

Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 25 n. 8, 101 S.Ct. 2615, 2629 n. 8, 69 L.Ed.2d 435, 454 n. 8 (1981), citing Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087-88, 45 L.Ed.2d 26 (1975); see also, Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 3233, 92 L.Ed.2d 650 (1986). All but the last of these factors are relevant to our analysis. The final element of the Cort test has routinely been eliminated when analyzing state statutes since it stems from the concept of federalism and the idea that the national government must show appropriate deference to state authority. Jalowiecki, supra 440 A.2d at 27; Lock, supra at 864, citing Hurley v. Allied Chemical Corp., 164 W. Va. 268, 262 S.E.2d 757, 760-761 (Sup.Ct. 1980).

(1) Special Class

As a starting point on this subject, we find it evident that the Pennsylvania Department of Environmental Resources is the principal actor in this statutory scheme. By the terms of the statute and the text of the Legislative Journal,*fn11 the DER is a member of the class for whose special benefit HSCA was passed. Key authorizing provisions explicitly refer to "the department"*fn12 and the official legislative history makes numerous refers to the DER in the passage of the Act.*fn13

This is not to say, however, that DER makes up the exclusive class for whose special benefit this Act was passed.*fn14 Under section 1115, the General Assembly provided for citizen suits allowing individuals to act as "private attorney generals" to obtain enforcement of HSCA. 35 Pa.S.A. § 6020.1115; Cf. Regan v. Cherry Corp., 706 F. Supp. 145, 149 (D.R.I. 1989). Moreover, section 1111 allows for a party to intervene in any proceedings brought under the Act if they have an interest which is or may be adversely affected. 35 Pa. S.A. § 6020.1111.

Finally, section 1101 provides that "[a] release of a hazardous substance . . . shall constitute a public nuisance. Any person allowing such a release . . . shall be liable for the response costs caused by the release . . ." 35 Pa.S.A. § 6020.1101. No specific limitation as to who can sue for response costs under this provision is given nor does it distinguish between government versus private causes of action. The scope of liability for response costs includes "other reasonable and necessary or appropriate costs of response incurred by any other person." See 35 Pa.S.A. § 6020.702(a)(3) Under section 103, person is defined 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
  includes the Federal Government, state
  governments and political subdivisions.

35 Pa.S.A. § 6020.103.

In order to give every word of the statute its full meaning without obtaining an absurd or inconsistent result, the scope of section 702(a)(3) must give a "person" other than the government the right to recovery, otherwise, this section would be redundant and serve no useful purpose. We say "other than the government" since the prior two provisions of the statute allow for government recovery for interim [§ 702(a)(1)] and remedial [§ 702(a)(2)] response costs. Reading section 702(a)(3) as also authorizing government recovery for response costs would be repetitious and would not give sufficient meaning to this provision of the statute.

In order to give full significance to section 702, we find that plaintiffs such as the ones before this court are included within the class for whose special benefit HSCA was enacted.*fn15 Accordingly, it is the finding of this court that the Plaintiffs fall within the class for whose special benefit the Hazardous Sites Cleanup Act was passed. In so finding, we believe that the first prong of the federal private cause of action standard is satisfied.

(2) Legislative Intent

The second prong, — i.e., the legislative intent to provide a private cause of action, — can be gleaned from the language of the statute and its legislative history. Unfortunately, the increasing complexity of legislation on environmental topics and the sparse amount of information as to Pennsylvania's legislative history has served to frustrate matters.

Legislative history in Pennsylvania is not as comprehensive as its federal counterpart. Rather, the Pennsylvania General Assembly publishes the Legislative Journal of the House and Senate containing the official legislative history of an enactment. 46 Pa.S.A. § 81, et seq. The remarks concerning HSCA concentrate on five major junctures in the passage of this legislation: (1) passage by the House of Representatives of the initial bill at 37 House Legislative Journal 991-1039, June 7, 1988; (2) the amended version by the State Senate at 51 Senate Legislative Journal 2548-2560, July 5, 1988; (3) the House of Representatives concurrence in the Senate amendments at 52 House Legislative Journal 1535-1539, July 13, 1988; (4) passage by the House after conference committee report at 60 House Legislative Journal 1717-1720, October 13, 1988; and finally, (5) passage by the Senate after conference committee report at 61 Senate Legislative Journal 2746-2748, October 13, 1988. See Zubeck, History of House Bills and Resolutions, Sessions of 1987 and 1988 Final Issue, A-262. Unfortunately, the rationale for any additions, deletions and modifications to the original bill on the subject of private causes of action is not discussed.

Due to the increasing complexity of legislation, some of the legislative history may be confusing, if not outright conflicting. This court has commented in the past on the precarious position legislative history plays in these controversial matters. Ambrogi, supra at 1246, n. 16. No one representative or political party passes legislation and the reasons for voting in favor or against certain legislation lies in the hearts and minds of the various lawmakers. With legislation such as this, where almost all agree that waste disposal regulation is necessary, but the means to that end engenders heated debate, the Act's history may be interpreted in various ways.*fn16 Under these circumstances, it is understandable that legislative intent, partially derived from the legislative history, is but one prong in the overall scheme of statutory interpretation that guides the court in its analysis.

As outlined in the Lutz III and Envirotech opinions, there are two interpretations concerning the passage of HSCA. On the one hand, the legislative history has been read to exclude a private right of action. Specifically, by deleting the provision calling for a private right of action and retaining the citizen suit and intervention provisions, it has been argued that the General Assembly expressly considered, yet rejected, the creation of such a private right. See generally, Lutz III, supra.

A contrary reading of the legislative history concludes that because the terms of HSCA closely track that of the federal CERCLA statute, the exclusion of the proposed private right of action, along with any victim compensation provisions, mirrors the federal legislative debate on this issue. It is argued that in passing a liability provision almost identical to its federal counterpart, the legislators knew the effect of these terms and acquiesced in it. Thus, recognizing the circumstances under which CERCLA had been passed and judicial findings of a private right of action under the general liability provisions of the federal act, the state version with the proposed express private right provision would have been redundant. Accordingly, the General Assembly removed it. See generally, Envirotech, supra.

Both of these interpretations are equally plausible and neither can be rejected out of hand. Thus, the legislative history is ambiguous as to this component of HSCA. Accordingly, although legislative intent is "[t]he key to the inquiry", Middlesex, 453 U.S. at 13, 101 S.Ct. at 2622, the intent of the General Assembly will have to come more from the actual language of the Act, placed in perspective by the limited legislative history and general regulatory scheme. This search for legislative intent will include looking for the policy behind the legislative provision, attempting to perceive the purpose for which it was enacted, and then, having ascertained that policy or purpose, we must determine whether a private right of action was intended to carry out its provisions.

As for the actual language of HSCA, there are no express provisions establishing a private right of action nor is there a prohibition against such a right. Section 507, which addresses actions to recover response costs, only makes reference to government entities — i.e., "the department, a Commonwealth agency, or a municipality". 35 Pa.S.A. § 6020.507. As we discussed in the previous section, however, it appears to this court that a combination of sections 1101 and 702(a)(3) acting in unison allows for a private cause of action. We come to this conclusion in part because no viable alternative to the meaning of section 702(a)(3) has been presented to this court nor does the case law denying a private right explain what meaning should be given to this section.

The terms of HSCA are remedial in nature and were enacted in part to ". . . ensure that no site will remain a danger to the public or environment for the lack of the proper legal tools." Remarks of Representative George, No. 61 House Legislative Journal at 1718 (Oct. 13, 1988). Whether the use of those "legal tools" is confined exclusively to the DER, however, is of major concern here. In attempting to find an answer, we note that throughout its passage, the HSCA bill was compared to the federal Superfund*fn17 legislation and we believe that CERCLA is the appropriate statute to assist in interpreting the terms and scope of HSCA.*fn18 This is not to say that CERCLA was the single model upon which the General Assembly relied in fashioning HSCA. By its very terms and structure, reliance on the remedies and enforcement provisions of the Solid Waste Management Act is also evident. The result is a hybrid statute with a foundation in both CERCLA and SWMA.

Almost identical language found in section 9607 of CERCLA is contained under section 6020.702 of HSCA. It is taken for granted that the language contained in the former statute establishes a private right of action. Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir. 1985) and cases cited therein; See also, Wickland Oil Terminals v. ASARCO, Inc., 792 F.2d 887 (9th Cir. 1986). Its Pennsylvania counterpart is not so clear.

It has been emphasized in Lutz II, 725 F. Supp. at 265, that HSCA differs in two respects. First, the introductory phrase to the liability section of CERCLA is broader than that of HSCA. Second, although other provisions of CERCLA make refers to causes of action under section 9607, no like references are made to section 6020.702 in HSCA.

Although we do not intend to diminish their place in the pattern of reasoning that establishes a federal right under CERCLA, we find the lack of these factors under HSCA does not change the overall result in light of the other, more pivotal elements regularly cited by the courts as the reason for establishing a private right of action. Of the litany of cases traditionally cited by the courts as establishing a private cause of action under CERCLA, only one mentions the two factors relied upon by Lutz.

In Pinole Point Properties v. Bethlehem Steel Corp., 596 F. Supp. 283, 289 (N.D.Calif. 1984), the court lists a series of reasons to justify its finding that a private right exists under CERCLA. The court found, in relevant part:

    First of all, the opening clause of section 107
  lends itself to broad interpretation. The opening
  clause states a severe limitation on defenses
  available in cases under section 107:
  "Notwithstanding any other provision or rule of
  law, and subject only to the defenses set forth
  in subsection (b) of this section . . .". This
  limitation on defenses surely suggests the
  existence of a basis for liability separate and
  independent from liability under sections 111 and
  112.

    Further support of the separateness of the
  sections is evidenced by the language of section
  108(c) which provides that "any claim authorized
  by section 9607 or 9611 of this title may be
  asserted against any guarantor . . ." 42 U.S.C. § 9608(c)
  (emphasis added).

Id. at 288 (footnote omitted).

Because HSCA does not contain a similar provision limiting defenses available to a defendant nor does its enforcement and remedies section mention actions brought under the liability provision, it is argued that the court should interpret the statute to only allow public enforcement and recovery. We cannot agree.

  First, one must place the statement of the Pinole court in
perspective. The court was attempting to justify a broad
interpretation to allow for private recovery. The above cited
provisions are just two of several factors and, in retrospect,
factors which have not been frequently cited by other courts in
their reasoning. See Walls, supra; Bulk Distribution Centers,
Inc. v. Monsanto Co., 589 F. Supp. 1437, 1442-44 (S.D.Fla.
1984); Jones v. Inmont Corp., 584 F. Supp. 1425, 1428 (S.D.Ohio
1984; City of Philadelphia v. Stepan Chemical Company,
544 F. Supp. 1135, 1140-44 (E.D.Pa. 1982). Second, the Pinole
court was seeking to refute the defendants' argument that
government action was a condition precedent to any and all
private liability. In rejecting the defendants' argument, Judge
Aguilar states:

   . . the language of section 107(a)(4)(B) is
  extremely broad and inclusive. That section
  states that "[a]ny person who . . . owned or
  operated any facility at which such hazardous
  substances were disposed of . . . shall be liable
  for any other necessary costs of response
  incurred by any other person consistent with the
  National Contingency Plan."
  42 U.S.C. § 9607(a)(4)(B) (emphasis added). It is difficult for
  the Court to imagine statutory language that would
  more clearly grant a private cause of action.

Pinole, supra at 288. Similar statutory language found by the Pinole court to "clearly grant a private right of action" is contained under HSCA — i.e., "[o]ther reasonable and necessary or appropriate costs of response incurred by any other person". In passing this provision, the General Assembly created a right of reimbursement for response costs incurred by "any other person" and thus created a private right of action when read in conjunction with section 1101. To rule otherwise would have us find a right to be reimbursed and a remedy to obtain the cleanup of a site, but no legitimate mechanism to realize that right or remedy.

The other factors which have been cited by the federal courts in establishing a private right of action are also applicable to HSCA. For example, a review of the terminology in both CERCLA and HSCA demonstrates a preoccupation with government action. The explanation given for this by the court in Bulk Distribution, supra at 1443, is germane to both superfund statutes:

    Although private parties may recover response
  costs under section 9607(a)(4)(B), the fact
  remains that much of CERCLA's language deals with
  government-sponsored clean-up efforts. Superfund
  provides a reliable way for the government to pay
  the clean up of some abandoned and inactive waste
  sites. Such sites generally require prompt
  attention, and may lack a readily identifiable
  responsible party from whom compensation can be
  sought. With Congress' attention focused on
  government involvement in waste site clean up, it
  comes as no surprise that those portions of
  CERCLA's text and legislative history discussing a
  private party's right against other private parties
  vis-a-via the Fund are ill-defined.

Accordingly, the language of CERCLA and HSCA concentrates on government action and, from the heated debate in the General Assembly, the funding mechanism for both acts is controversial, if not inadequate. See 37 House Legislative Journal, 1015-20 (June 7, 1988). Thus, the need for private right of actions becomes a benchmark for both statutes. Like CERCLA, the Pennsylvania statute was designed primarily to facilitate the prompt cleanup of hazardous waste sites by placing the ultimate financial responsibility for cleanup on those responsible for the hazardous wastes. Allowing a private action to recover response costs from responsible parties under HSCA is consistent with the language of sections 1101 and 702 and with the legislative purpose underlying HSCA as a whole.

In addition, the statutory structure of CERCLA and HSCA concerning non-governmental enforcement are similar in nature. Citizen suits under CERCLA are provided for at 42 U.S.C. § 9659 and intervention at § 9613. Citizen suits under HSCA are codified at 35 P.S. § 6020.1115 and intervention at § 6020.1111. There is no similar provision for citizen suits under the SWMA, the comparative regulatory statute used by the Lutz court. There is, however, a right to intervene. 35 Pa.S.A. § 6018.615; See also, Mattioni, Pennsylvania Environmental Law Handbook (5th ed. 1990) at 216.

Accordingly, based on the language of the statute and its legislative history, we hold that in order to promote the goals and effectiveness of this legislation, it was the intent of the General Assemble to create a private right of action.

3.  Purpose and Scheme

In Lutz III, the court premised part of its decision on a finding that the General Assembly intended to leave the enforcement mechanisms to an administrative agency with limited participation by citizens under the intervention and citizen suit provisions. There is some credence to this interpretation of the legislative scheme, although ultimately, we reject it.

Under this approach, the purpose of the Act is not to provide a universal mechanism for both private and public cleanup activities, but rather, HSCA's scope is aimed at achieving full state government participation in hazardous cleanup efforts and enhance certain provisions of CERCLA which the General Assembly thought lacking. See generally, Morissette & Hourcle, 31 A.F.L.Rev. 137 at n. 4 and 36; 35 Pa. S.A. § 6020.102(8); 61 House Legislative Journal 1718 (Oct. 13, 1988).

  There are several factors weighing in favor of this
interpretation. For example, the specific language of the Act
primarily addresses the "powers and duties" of government
entities. Specifically, Chapter One of HSCA provides a
"Declaration of policy" which repeatedly refers to "the
department" although no direct refers is made to a private
right of action. See 35 Pa.S.A. § 6020.102 Chapter Three
delineates the powers and duties contained under

the Act and reference solely to government entities and not
private parties. See 35 Pa.S.A. § 6020.301 (Powers and duties
of department); 35 Pa.S.A. § 6020.303 (Powers and duties of
Environmental Quality Board); 35 Pa.S.A. § 6020.313 (Powers and
duties of commission). The chapter entitled "Response and
Investigation" discusses interim and remedial response actions
by (1) "the department", (2) "the owner, operator or any other
responsible person", and (3) the Governor in emergency matters.
35 Pa.S.A. § 6020.501(a) and (g). No reference is made to
private parties. Finally, under section 507 of the Act entitled
"Recovery of response costs", it is stated, in relevant part:

   . . The department, a Commonwealth agency, or a
  municipality which undertakes to abate a public
  nuisance under this act or take a response action
  may recover those response costs and natural
  resource damages in an action in equity brought
  before a court of competent jurisdiction . . .

35 Pa.S.A. § 6020.507(a). Nowhere in this section are private individuals discussed, but again, only government entities are identified.

The legislative history of the Act demonstrates that the only time a private right of action was explicitly proposed, it was stricken from the bill. Although it has been expressed that this is similar to the passage of CERCLA, that is not the case. The deleted federal legislative amendment proposed recovery for essentially three broad items: "medical expenses or property or income loss." See Artesian Water Co. v. Government of New Castle County, 659 F. Supp. 1269, 1286 (D.Del. 1987), aff'd, 851 F.2d 643 (3d Cir. 1988), citing 126 Cong. Rec. S14,964 (daily ed. Nov. 24, 1980) (statement of Sen. Randolph). By declining to allow for the recovery of these expenses, federal courts are required to make the "fundamental, if elusive, distinction between response costs and economic losses." Id.

In HSCA's case, however, the provision deleted by the General Assembly specified personal injury, property damages, or response costs. See Envirotech, supra at 117, citing HB 1852, Printer's No. 3428 at 41-42, 37 House Legislative Journal at 991-1039. By expressly including the latter category, the state version differs from the federal bill in that both economic costs and response costs were excluded from consideration. This was accomplished, however, since the deleted state version specifically mentioned "response costs", whereas to this court's knowledge, the federal provision did not use that term of art.

In addition, we note that when Congress revised the 1980 CERCLA legislation through the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), it provided for "substantial and meaningful involvement by each State in initiation, development, and selection of remedial actions to be undertaken in that State." 42 U.S.C. § 9621(f). As a result, many states have "seized the initiative to develop an aggressive state role in environmental protection and enforcement." Morissette & Hourcle, State Environmental Laws Redefine "Substantial and Meaningful Involvement", 31 A.F.L.Rev. 137 (January 1989), citing Pennsylvania Hazardous Sites Cleanup Act at n. 36.

In that vein, the Pennsylvania General Assembly enacted its only Superfund Act when it passed HSCA in 1988. As discussed previously, the language of the Act reflects the influences of CERCLA. Moreover, reference to CERCLA and the importance of state participation were expressed in the opening provisions of HSCA's declaration of policy. First, under section 102, the Act provides:

The General Assembly finds and declares as follows:

  (7) The Federal Superfund Act provides numerous
  opportunities for states to participate in the
  cleanup of hazardous sites. It is in the interest
  of the citizens of this Commonwealth that the
  Commonwealth be authorized to participate in such
  cleanups and related activities to the fullest
  extent.

35 Pa.S.A. § 6020.102 (footnote omitted). Further, in defining the purposes of the Act, two provisions appear to lend support to this argument:

(12) The following are purposes of this act:

  (i) Authorize the department to participate in
  the investigation, assessment and cleanup of
  sites under the Federal Superfund Act to the full
  extent provided by that act.

  (v) Establish and maintain a cooperative State
  and Federal program for the investigation and
  cleanup of sites containing hazardous substances
  or contaminants and for the replacement of
  affected water supplies and to take other
  appropriate response actions.

35 Pa.S.A. § 6020.102(12)(i) and (v).

  This participatory purpose is also reflected by several
references in the Pennsylvania Legislative Journal. For
instance, in discussing the various amendments proposed to the
initial bill, Representative Hayden stated:

   . . When the Federal Superfund Act was
  reauthorized in October of 1986, a number of the
  congressional folks involved in that case said
  that we should give individual States the
  opportunity to enact, in a sense, their own
  standards and to be able to make individual
  judgments for their own citizens with respect to
  which particular elements would be defined as
  "contaminants."

37 House Legislative Journal 1010 (June 7, 1988). In an attempt to justify a proposed amendment in the House, Representative Reber explained:

    Additionally, we are under the mandate under
  the Federal SARA (Superfund Amendments and
  Reauthorization Act) statute to come into
  compliance with certain aspects of Federal law;
  to, by October of 1989, be in a position to
  certify some form of siting for our hazardous
  waste remediation as well as a hazardous waste
  site for ongoing business.

37 House Legislative Journal 1029 (June 7, 1988); see also Prepared Remarks of Sen. Fisher, 60 Senate Legislative Journal 2747 at "Hazardous Waste Facilities Siting."

Moreover, all references in the Legislative Journal are restricted to government action in the cleanup of hazardous sites. When introduced for final passage in the State Senate, the prepared remarks to "be included in the legislative history" indicate that "[t]he bill would authorize DER to develop, administer, and enforce the state's investigation, assessment and cleanup of hazardous waste sites within the Commonwealth." Remarks of Sen. Fisher, 60 Senate Legislative Journal 2746 (October 13, 1988). In the House, on the day of passage, Representative Freeman indicated that "this legislation gives State Government the necessary tools and resources." Remarks of Rep. Freeman, 61 House Legislative Journal 1719 (October 13, 1988).

Finally, in a long discussion as to the interaction between HSCA and other state laws, Representative George lays out the statutory scheme to be followed by the DER:

    A third major concern of many has been this
  bill's relation to other laws. HB 1852 is
  designed to be used in conjunction with other
  existing environmental statutes such as the Solid
  Waste Management Act and the Clean Streams Law.
  The new Hazardous Sites Cleanup Act will fill up
  many of the gaps which currently exist in
  the department's overall enforcement strategy and
  will help ensure that no site will remain a danger
  to the public or environment for the lack of the
  proper legal tools . . . The bill does limit the
  department's authority to issue cleanup orders or
  to recover its costs of performing a final cleanup
  unless they have first attempted to enforce other
  applicable laws. While this approach recognizes the
  fact that certain responsible persons have obtained
  permits from the department to conduct activities
  at the site, it also gives the department the
  ability to use the new law whenever necessary to
  achieve the cleanup of a site . . .

    The purposes of the limitations described above
  are to encourage the site owner or operator to
  cooperate with the Department of Environmental
  Resources in order to abate a release or threatened
  permit. An owner or operator

  of a site who does not voluntarily cooperate and
  comply with the department's orders under other
  laws is given the additional opportunity to
  escape from Superfund liability if he can
  demonstrate to the Environmental Hearing Board or
  a court that there was no release or threatened
  release at his site. For this purpose, a new
  supersedeas procedure is created which is totally
  separate from any supersedeas which may be
  obtained under the Solid Waste Management Act or
  other applicable environmental laws. This special
  supersedeas should have limited utility, however,
  since the Environmental Hearing Board or court is
  restricted solely to the question of whether a
  release or threatened release exists.

    HB 1852 is a vast improvement over the Federal
  cleanup program and existing State environmental
  laws. It will allow the Department of Environmental
  Resources to clean up sites not on the National
  Priority List, to accelerate the pace of cleanup on
  some Federal Superfund sites, and to apply more
  stringent cleanup standards where appropriate to
  protect the environment and the health and safety
  of the citizens of the Commonwealth. While general
  cleanup standards will be promulgates by
  regulation, the department will also be able to
  apply special standards on a case-by-case basis . . .

See generally, Remarks of Rep. George, 61 House Legislative Journal 1718 (October 13, 1988) (emphasis added).

  Thus, both the terms of the statute and the legislative
history give some support to the concept of limiting the scope
of HSCA to public enforcement. This is not an unknown approach
to statutory enforcement and has been used by state
legislatures and Congress. By withholding a private right of
action and relying instead on public enforcement, the
legislative branch is expressing its concern with obtaining
more accurate implementation and more coordinated enforcement
of a regulatory scheme. See Fleck v. Timmons, 374 Pa. Super. 417,
 543 A.2d 148 (Pa. 1988); See also, Merrell Dow
Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229,
3244, 92 L.Ed.2d 650 (Brennan dissent).

After careful consideration of the issues raised by this case, this court rejects the narrow scope of purpose advocated above and instead, embraces the all encompassing remedial approach which includes a private right of action under HSCA. Though the reasoning in the Lutz opinions is academically sound and provides a "degree of analytic neatness", the result does not achieve the greater good that we believe the General Assembly intended. See Stepan Chemical, 544 F. Supp. at 1142. Practical application requires the right of private individuals to bring suit to fulfill the goals of this legislation.

A remedial environmental statute such a HSCA warrants the broadest interpretation consistent with the express language of the statute. Fleck v. Timmons, 374 Pa. Super. 417, 424, 543 A.2d 148 (1988), citing Stepan Chemical, supra; See also, 1 Pa. C.S.A. §§ 1921(b) and 1928(c). Although the arguments presented by the Defendant appears to conform to the legislative scheme for Pennsylvania's environmental regulations, the one strong item which causes this court to hesitate to accept such a conclusion is that no reasonable or legitimate alternative reading of section 702(a)(3) has been provided.

If the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly, 1 Pa. C.S.A. § 1921(a), we must give full meaning to the terms of the Act. To accept the premise that no private right is created, section 702(a)(3) would appear to be only a redundant phrase by allowing the government to act as an intermediary to secure response costs for those private parties who seek to intervene in an action. On the other hand, if this provision is read to establish a remedy to be afforded private citizens, the words of the statute are given there fullest, legitimate, and broadest interpretation.

Moreover, if it was the intent of the legislature to empower the DER with the cleanup of hazardous waste sites, that intent is not defeated by, in addition to DER's authority, a private right is also established. By making this finding, this court reads this remedial statute in the broadest terms possibly to achieve its purpose of remedying the perceived mischief — i.e., to clean up hazardous sites. The introductory phrase of the legislation begins with the "An Act providing for the cleanup of hazardous waste sites" only to be followed by "providing further powers and duties of the Department of Environmental Resources and the Environmental Quality Control Board . . .", which could be interpreted to demonstrate the priority of concerns envisioned by the state legislature. 61 House Legislative Journal 1717 (Oct. 13, 1988); 60 Senate Legislative Journal 2746 (Oct. 13, 1988); See also, 1 Pa. C.S.A. § 1924.

Finally, two other factors persuade this court to find a private right under HSCA. The Pennsylvania Department of Environmental Resources, the agency which is indisputably assigned the bulwark of the enforcement provision in HSCA, has indicated that it would serve to promote the goals of the Act by providing a private right. It is that agency's position that a private right is imperative to the successful and efficient enforcement of HSCA. We should and are compelled to show deference to the administrative agency assigned to enforce a statutes provisions.

Second, responding to the needs for developing a new body of law to provide relief from the insidious forms of injury caused by hazardous substances, the General Assembly passed legislation such as the Hazardous Sites Cleanup Act. This fact is memorialized in HSCA under the statement of purpose outlined at section 102(5):

  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). We believe that these "new remedies" include the right of private parties to assert a cause of action under the Commonwealth's superfund statute.

III

Conclusion

It is the conclusion of this court that the intent of the Pennsylvania General Assembly when enacting the Hazardous Sites Cleanup Act was to empower the Commonwealth's Department of Environmental Resources with greater authority to deal with the growing problem of hazardous waste disposal. This is evident by the terms of the Act which repeatedly refer to "the department" and by the statements of the State Senators and Representatives on the day of the Act's passage in both Houses. As explained by the House Conference Committee Member, Representative George, "[t]he new Hazardous Sites Cleanup Act will full up many of the gaps which currently exist in the department's overall enforcement strategy and will help ensure that no site will remain a danger to the public or environment for the lack of the proper legal tools." Remarks of Rep. George, 61 House Legislative Journal 1718 (October 13, 1988).

In attempting to achieve this goal, the lawmakers relied heavily on the terms and legislative scheme outlined in the federal Superfund Act. As a result, the Commonwealth incorporated many of the concepts targeted by the national legislature, including the concept that a private right of action emanates from the words of this Act. As perceived by this court, there are two ways of looking at this "act of incorporation" by the General Assembly. Either the legislature inadvertently adopted the private right concept by its reliance and adoption of the terms of the federal act, or the legislature was aware of the terms of the act, was cognizant of the judicial interpretations finding a private right under these terms, and chose to enact those provisions. Since there is evidence that they relied on judicial interpretations in their decision-making process*fn19 and we must presume that the legislature intended to given meaning to all of the provisions of what they enacted, we believe the latter is the only alternative.

We do not blindly make this ruling today and we are aware of some troubling aspects of our decision. This includes the fact that its been over two years since the Lutz opinions were rendered, and yet the General Assembly appears to have done nothing to rectify or overturn their effect. Moreover, HSCA does not contain a contingency plan similar to CERCLA that this court found so crucial in it previous rulings.*fn20 See Ambrogi, 750 F. Supp. 1233. Finally, limiting enforcement to public agencies would appear to fit with the overall legislative scheme to provide substantial and meaningful state involvement in the environmental scheme. Morissette, State Environmental Laws Redefine "Substantial and Meaningful Involvement", 31 A.F.L.Rev. 137 (1989).

Yet we render this decision based primarily on four reasons: (1) there has been no legitimate alternative reading of section 702(a)(3) of HSCA provided to the court; (2) similar to CERCLA, a private right of action can be legitimately inferred from the words of the statute; (3) such a finding will not disrupt the administrative enforcement of the Act and it is actually welcomed by the enforcing agency; and (4) traditional remedies have failed and such a remedial statute will fill the gaps for all involved, including the DER as well as private citizens.

If this legislation is to be interpreted as a vast improvement over the Federal cleanup program and existing State environmental laws, in could not have been the intent of the state legislature to remove a basic component found to be so crucial in its federal counterpart. For if the purpose of the Act is to promote cleanup of a site, the lack of a private right of action will inhibit this goal.

Accordingly, it is so ordered.


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