action seeking, inter alia, to recover costs for the initial cleanup of the ISCC site pursuant to 42 U.S.C. § 9607 (CERCLA § 107) and contribution pursuant to 42 U.S.C. § 9613 (CERCLA § 113). The ISCC Defendants ("Defendants") argue that Plaintiffs, as liable/responsible parties, are unable to bring a cost recovery action. The parties have briefed the issues and the motion is ripe for disposition.
The instant action arises from the cleanup of the ISCC site in Newberry Township, York County, Pennsylvania.
Plaintiffs seek to recover cleanup and other response costs incurred by them or their predecessors from the Defendants and/or to obtain contribution from the Defendants, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), 42 U.S.C. §§ 9607(a) and 9613(f), the Pennsylvania Hazardous Sites Cleanup Act ("HSCA"), 35 P.S. §§ 6020.507, 6020.701, 6020.702, 6020.705, 6020.1101, the Pennsylvania Uniform Contribution Among Tort-Feasors Act ("PUCTA"), 42 Pa. Cons. Stat. Ann. §§ 321 et seq., and Pennsylvania common law.
Plaintiffs' involvement with cleanup of the ISCC site began in 1990 when the Pennsylvania Department of Environmental Protection ("PADEP") targeted by letter over 900 potentially responsible parties ("PRPs") including Plaintiffs. This letter notified the PRPs that the PADEP had determined that a release or threatened release of hazardous substances had occurred at the ISCC site, and that each letter recipient was potentially liable for response and cleanup costs pursuant to the HSCA. On October 26, 1991, the PADEP placed the ISCC site on the Pennsylvania Priority List for remedial response. Subsequently, Plaintiffs agreed to become site response providers ("SRPs"), and have since entered into three separate Consent Orders and Agreements ("COAs") with the PADEP to facilitate cleanup of the ISCC site. See COA I, dated August 11, 1993; COA II, dated December 6, 1993; and COA III, dated August 3, 1994.
Defendants contend that Plaintiffs are liable/responsible parties pursuant to both CERCLA and the HSCA, and thus, are incapable of bringing a § 107 cost recovery action. Defendants' argument finds support in the recent case law trend which reads CERCLA, as amended by the Superfund Amendments and Reauthorization Act ("SARA"), as prohibiting cost recovery actions by PRPs. Plaintiffs, to the contrary, argue that despite the recent trend, the plain language and legislative intent of CERCLA and SARA provide private parties with the right to proceed with a cost recovery action under § 107. A minority of recently decided cases on the issue have adopted reasoning in keeping with Plaintiffs' argument. The central issue before the court, whether a PRP has standing to bring a § 107 cost recovery action, is presently a hotly-debated legal issue. Neither the Supreme Court nor the Third Circuit has directly ruled on the issue. Moreover, precedent at both the district and circuit court levels is sufficiently contradictory and muddled as to provide little coherent assistance. Accordingly, the court will evaluate the statutory framework created by CERCLA, the countervailing policies behind CERCLA, and the case law that has developed to interpret CERCLA before reaching the merits of the instant motion to dismiss.
II. Legal Standard: Motion to Dismiss
Under Rule 12(b)(6), "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The court must "'take all well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff,' and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir. 1985)), cert. denied, 489 U.S. 1065, 109 S. Ct. 1338, 103 L. Ed. 2d 808 (1989). "Because 12(b)(6) results in a determination on the merits at an early stage of the case, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn." Mortensen v. First Fed. Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
III. Statutory Framework of CERCLA and SARA
In enacting CERCLA, the federal government sought to foster the prompt cleanup of hazardous waste sites nationwide. See Pub. L. No. 96-510, 94 Stat. 2767 (1980) (CERCLA was created to "provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites.").
When the EPA determines the release or threatened release of a hazardous substance at a site appears to warrant remedial action under CERCLA, it places the site on the NPL ["National Priorities List"]. The EPA then administers the cleanup and related activities itself, or . . . authorizes a state agency to do so. CERCLA places the ultimate financial liability for cleanup costs on those responsible under CERCLA for the wastes.
Sayreville v. Union Carbide Corp., 923 F. Supp. 671, 676 (D.N.J. 1996) (internal citations omitted).
Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), enumerates the classes of persons that can be held liable for CERCLA violations. These persons are referred to as "potentially responsible parties." The following PRPs are subject to CERCLA liability: (1) present owners or operators of a hazardous waste site, (2) persons who owned or operated the site at the time when hazardous materials were disposed of at the site, (3) persons who arranged for the disposal of wastes at the site, and (4) persons who transported wastes to the site for disposal. 42 U.S.C. § 9607(a). Pursuant to § 107(a)(4)(B), "any other person" may sue to recover its response costs. Moreover, although not expressly stated within the text of the statute, courts to rule on the issue have nearly unanimously determined that liability under § 107 is joint and several unless the defendant can demonstrate that the harm is divisible. Pinal Creek Group v. Newmont Min. Corp., 926 F. Supp. 1400, 1404 (D. Ariz. 1996) (citing United States v. Alcan Aluminum Corp., 964 F.2d 252, 268-69 (3d Cir. 1992)). The defenses available to § 107 defendants are limited by the statute, and liability may be imposed without proof of causation. Pinal Creek Group, 926 F.2d at 1404 (noting that "section 107 defendants are strictly liable").
An important goal of this private cost recovery action framework is to "encourage timely cleanup of hazardous waste sites." Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 935 (8th Cir. 1995). In theory, parties should be more eager to voluntarily or promptly undertake cleanup of a contaminated site if they know that they will be able to recover their response costs. Moreover, as originally drafted, CERCLA did not provide for contribution actions; instead, only actions for cost recovery pursuant to § 107 were available to parties involved in site cleanup. See United States v. Colorado & Eastern R. Co., 50 F.3d 1530, 1535 (10th Cir. 1995); United Technologies v. Browning-Ferris Industries, 33 F.3d 96, 98 (1st Cir. 1994), cert. denied, U.S. , 115 S. Ct. 1176, 130 L. Ed. 2d 1128 (1995). Prior to 1986, courts used the common law to imply rights of action for contribution among PRPs where necessary to "alleviate the potentially unfair burden that joint and several liability may cause." Pinal Creek Group, 926 F.2d at 1404; see Colorado & Eastern R. Co., 50 F.3d at 1535 (noting that courts implied a right of action for contribution where it was evident that the plaintiff had contributed more than its pro rata share of costs to the cleanup effort); Browning-Ferris, 33 F.3d at 100 (citing cases).
In 1986, Congress passed SARA which added an express cause of action for contribution to the CERCLA statutory framework. "A principle goal of the new § 9613 [(CERCLA § 113)] was to 'clarify and confirm the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances.'" Browning-Ferris, 33 F.3d at 100 (quoting S. Rep. No. 11, 99th Cong., 1st Sess. 44 (1985), reprinted in 2 Legislative History of the Superfund Amendments and Reauthorization Act of 1986, 636, Sp. Print 101-120 (101st Cong., 2d Sess.) (1990)). Unfortunately, this attempt to "clarify and confirm" the right to contribution pursuant to CERCLA has actually resulted in a substantial amount of confusion regarding the interplay between §§ 107 and 113. See Pinal Creek Group, 926 F. Supp. at 1404. ("Instead of clarifying and confirming the right of contribution, however, these amendments 'ignited a firestorm' of litigation and judicial controversy.") (quoting Ann Alexander, Standing Under Superfund §§ 107 and 113; Avoiding the Error of the Blind Man and the Elephant, Toxics L. Rptr. (BNA) 155 (July 12, 1995)); Colorado & Eastern R. Co., 50 F.3d at 1535 (noting that the broad language of CERCLA "has given the courts many challenges"); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 667 (5th Cir. 1989) (noting that CERCLA "has 'acquired a well-deserved notoriety for vaguely-drafted provisions and an indefinite, if not contradictory, legislative history'"); Mark A. Stach, Only "Innocent" Parties Need Apply: The Death of Private Party Cost Recovery Actions Under Superfund?, 20 Wm. & Mary Envtl. L. & Pol'y Rev. 33, 36 (1995) ("Some of the confusion engendered by . . . [CERCLA] revolves around its provisions for the recovery of costs by private parties who have expended funds to cleanup sites. Nowhere is this confusion more apparent than in court decisions dealing with CERCLA's two statutory mechanisms for the recoupment of cleanup costs . . . .").
A. Statutory Interpretation
The canons of statutory construction dictate that the court begin its inquiry with the plain language of the statute. In re Segal, 57 F.3d 342, 345 (3d Cir. 1995) (citing Mansell v. Mansell, 490 U.S. 581, 588, 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989)). Moreover, "where 'the terms of a statute [are] unambiguous, judicial inquiry is complete except in rare circumstances.' " Segal, 57 F.3d at 346 (quoting Taylor v. Freeland & Kronz, 938 F.2d 420, 424 (3d Cir. 1991), aff'd, 503 U.S. 638, 118 L. Ed. 2d 280, 112 S. Ct. 1644 (1992)) (alteration in original); see also United States v. Alcan Aluminum Corp., 964 F.2d 252, 260 (3 Cir. 1992) (interpreting CERCLA and noting that where the statute is plain on its face (the court "need not resort to legislative history to uncover its meaning"). Only where the literal reading of a statute will cause an outcome clearly at odds with the intent of its drafters will the court look beyond the plain language of the statute for its meaning. Segal, 57 F.3d at 346. In relevant part, § 107 provides as follows:
(a) . . . Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section -- [certain enumerated persons] . . .
(4) . . . shall be liable for -