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TOOLE v. GOULD

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.

  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 ...


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