MEMORANDUM AND ORDER
JUNE 16, 1995
Defendant Johnston Industries, Inc. ("Johnston") has moved for summary judgment. Plaintiffs Bethlehem Iron Works, Inc. and Steel Structures Corp. (collectively "Plaintiffs") raise claims pursuant to section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a), and section 1101 of the Pennsylvania Hazardous Sites Cleanup Act ("HSCA"), 35 Pa. Cons. Stat. Ann. § 6020.1101, to recover response costs incurred at a site located in Salisbury Township, Lehigh County, Pennsylvania.
Johnston argues that Plaintiffs are prohibited from raising their claims as a matter of law. First, it argues because Plaintiffs are liable parties, they cannot assert claims pursuant to CERCLA section 107(a), 42 U.S.C. § 9607(a). Second, they argue that the HSCA does not authorize a private right of action. For the following reasons, Johnston's motion is DENIED.
On February 26, 1968, Bethlehem Fabricators, Inc., a predecessor corporation of Johnston, purchased the property that is the subject of this dispute. Following that purchase, Bethlehem Fabricators, Inc. constructed a structural steel fabricating plant on the property and operated the plant until 1982. In 1983, the property was sold to Charles P. Lewis, the sole stockholder of Lewis Industries, Inc. Mr. Lewis owned and operated a structural steel fabrication facility on the property. In 1985, Plaintiffs began to own and operate the structural steel fabrication facility. The facility is no longer in operation.
Plaintiffs allege that they have incurred approximately $ 3 million in environmental cleanup costs of the site. Plaintiffs seek to recover costs from Charles Lewis, Lewis Industries, Inc., and Johnston. There is no evidence on the record that any of the parties to this action were ever subject to any judgment, consent decree, or other agreement with the state or federal government concerning liability for the contamination or responsibility for the cleanup of the site.
B. Summary Judgment Standard
Summary judgment is proper when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The court's role is to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993). The moving party has the burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
II. CERCLA Section 107 Claim
A. CERCLA Overview
CERCLA imposes liability broadly. Section 107(a) imposes liability on four classes of potentially responsible parties ("PRPs"): (1) the owner and operator of the facility; (2) any person who owned or operated the facility at the time of disposal of any hazardous substance; (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment of hazardous substances owned or possessed by that person; and (4) any person who accepted any hazardous substances for the transport to disposal or treatment sites selected by that person. 42 U.S.C. § 9607(a)(1)-(4). Section 107(a) provides an implied cause of action for private parties to seek recovery of response costs. Key Tronic Corp. v. United States, 114 S. Ct. 1960, 1966 (1994). In section 107(a) actions, PRPs are strictly liable if there was a release or threat of a release of a hazardous substance at a facility and a person incurred necessary response costs consistent with the national contingency plan ("NCP"). 42 U.S.C. § 9607(a). See also 42 U.S.C. § 9601(32); United States v. Monsanto Co., 858 F.2d 160, 167 (4th Cir. 1988), cert. denied, 490 U.S. 1106, 104 L. Ed. 2d 1019, 109 S. Ct. 3156 (1989) (interpreting section 107(a) as imposing strict liability). Liability is joint and several unless the defendant can demonstrate that the harm is divisible. United States v. Alcan Aluminum Corp., 964 F.2d 252, 268-69 (3d Cir. 1992); Monsanto, 858 F.2d at 171-72.
To alleviate the potentially unfair burden that joint and several liability may cause, in the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub. L. No. 99-499, 100 Stat. 1613 (1986) (codified in scattered section of 42 U.S.C.), Congress created a right of contribution. This provision, CERCLA section 113(f), provides in pertinent part as follows:
Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action . . . under section 9607(a) of this title. . . . In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under . . . section 9607 of this title.