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BETHLEHEM IRON WORKS v. LEWIS INDUS.

June 16, 1995

BETHLEHEM IRON WORKS, INC. and STEEL STRUCTURES CORP., Plaintiffs,
v.
LEWIS INDUSTRIES, INC., CHARLES P. LEWIS, and JOHNSTON INDUSTRIES, INC., Defendants



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 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.

 I. Introduction

 A. Facts

 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


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