The opinion of the court was delivered by: Magistrate Judge Lenihan
Re: ECF Nos. 62, 65, & 67
Presently before the Court are Motions to Dismiss Plaintiff Pennsylvania Department of Environmental Protection‟s ("DEP") Amended Complaint (ECF No. 54) pursuant to Fed. R. Civ. P. 12 (b) (6) filed by Defendant Carnegie Mellon University ("CMU") (ECF No. 67), Defendant CBS ("CBS") (ECF No. 62), and joined in by Defendant Exxon Mobil Corporation ("Exxon") (ECF No. 65) [hereinafter collectively "Defendants"].
DEP filed this civil action pursuant to § 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675, ("CERCLA"), 42 U.S.C. § 9607(a), for the recovery from Defendants of response costs and interest incurred by Plaintiff in responding to the release or threatened release from the former Boldan Landfill ("Site") located in Penn Township, Westmoreland County, Pennsylvania.
Defendants filed Motions to Dismiss DEP‟s original Complaint. (ECF Nos. 9, 13, 17, 22.) DEP responded to Defendants‟ Motions (ECF. No. 40), indicating that it desired leave to amend its complaint in the event that the Court would not consider its exhibits and affidavit attached to its responsive brief. (ECF No. 40 at 4 n.1.) Thereafter, the Court granted leave to file an Amended Complaint, and further ordered that Defendants file either an Answer thereto, or a motion to dismiss the Amended Complaint. (ECF No. 53.) DEP filed its Amended Complaint on March 31, 2010 (ECF No. 54), and attached the affidavit and accompanying attachments originally filed with its Response at ECF No. 40. Thereafter, Defendants filed the Motions to Dismiss presently before the Court. For the reasons that follow, Defendants‟ Motions to Dismiss at ECF Nos. 62, 65 and 67 will be granted, and Plaintiff‟s Amended Complaint at ECF No. 54 will be dismissed with prejudice as to Defendants Carnegie Mellon University, CBS Corporation, and Exxon Mobil Corporation.
Defendant Bolden, Inc.*fn1 has owned the Site since 1962 and operated it as a landfill from 1962 to 1970. (Amended Complaint, ECF No. 54 at ¶ 10 [hereinafter "ECF No. 54 at ¶ __"].) DEP was aware as early as 1988 that a release or threatened release of hazardous substances was occurring at the Site. (ECF No. 54 at ¶ 11.) Pursuant to § 501 of the Pennsylvania Hazardous Sites Cleanup Act ("HSCA"), 35 P.S. § 6020.501, the DEP conducted a comprehensive investigation of the Site from December 2001 through September 2002 that delineated the release and threatened release of hazardous substances occurring at the Site. (ECF No. 54 at ¶ 12.) DEP avers that its 2001-2002 investigation of the Site pursuant to the HSCA served to monitor, assess and evaluate the release and threatened release of hazardous substances at the Site. (ECF No. 54 at ¶ 13.) The DEP then characterizes its actions during the 2001-2002 investigation of the Site pursuant to the HSCA as the equivalent of a CERCLA removal. (ECF No. 54 at ¶ 14.) The DEP continues that as a result of this investigation of the Site, it determined that prompt action was not necessary because no immediate threat to the environment and/or community was present. (ECF No. 54 at ¶ 15.) The DEP avers that it therefore elected not to undertake a prompt interim response at the Site pursuant to § 505(b) of the HSCA, 35 P.S. § 6020.505(b). (ECF No. 54 at ¶ 16.) Instead, the DEP alleges that it elected to undertake a "limited interim response" pursuant to HSCA §§ 103, 501 and 505(c), 35 P.S. §§ 6020.103, 6020.501 and 6020.505(c) that would result in a "long-term, permanent remedy at the Site." (ECF No. 54 at ¶ 17.) The DEP then avers that "[n]otwithstanding its being labeled an "interim response‟ under HSCA, the [DEP‟s] HSCA limited interim response was not an interim or temporary measure and was not intended to be supplemented with any kind of additional response action." (ECF No. 54 at ¶ 18.) DEP alleges that it fulfilled certain statutory prerequisites prior to implementing this HSCA limited interim response, including the publication of an administrative record for a ninety-day public review and comment period and the holding of a public hearing, just as it had done prior to implementing its 2001-2002 comprehensive investigation of the Site. (ECF No. 54 at ¶ 19.)
DEP further avers that in June 2003 through January 2004, it conducted a "limited interim response" pursuant to the HSCA at the Site. This "limited interim response" included excavation and off-site disposal, followed by restoration of the Site. (ECF No. 54 at ¶ 20.) During the "limited interim response" the DEP avers that it "justifiably exceeded the limited interim response limitation of $2,000,000 pursuant to Section 103 of HSCA, 35 P.S. § 6020.103." (ECF No. 54 at ¶ 21.)
In the next six paragraphs of the Amended Complaint, DEP states that because its "HSCA interim response was oriented to" or "resulted in a final, permanent remedy," "it employed post-removal cleanup standards," it "backfilled and graded the Site," "no additional groundwater monitoring was necessary," and the DEP "dismantled and abandoned all groundwater monitoring wells," it has not taken any additional response action at the Site since January 2004, and does not intend to take any additional action, either investigative or remedial. (ECF No. 54 at ¶¶ 22-26.) DEP concludes that its "HSCA limited interim response at the Site was the equivalent of a CERCLA remedial action." (ECF No. 54 at ¶ 27.) Finally, DEP states that it incorporates an attached affidavit by reference. (ECF No. 54 at ¶ 28.)
DEP avers that it has incurred $3.7 million in response costs and that it complied with the National Contingency Plan, 40 C.F.R. Part 300, as amended. (ECF No. 54 at ¶¶ 29-30.) It also states that it "commenced its HSCA limited interim response at the Site in June 2003, within three years of its September 2002 completion of its comprehensive investigation of the Site." (ECF No. 54 at ¶ 31.) DEP further avers that an agreement to toll the statute of limitations as to CERCLA cost recovery claims was executed by the parties effective from February 21, 2009 through August 21, 2009. (ECF No. 54 at ¶ 32.) Having filed its claims for costs of its investigation and its HSCA limited interim response on August 21, 2009, in conjunction with the applicable tolling agreement, DEP avers that it timely filed this action within the applicable CERCLA six-year statute of limitations. (ECF No. 54 at ¶¶ 33-34.)
THE ADMINISTRATIVE RECORD
On May 26, 2001, the DEP published a "Notice of Interim Response" in the Pennsylvania Bulletin indicating that it was "proposing a response action for the Boldan Landfill." (31 Pa. Bull. 2712 (May 26, 2001), ECF No. 67-1 at 2.)
On December 18, 2002, the DEP published an Analysis of Alternatives with "Interim Response" as its heading; the analysis indicated that the DEP was "proposing to conduct an interim response" at the Site which would "consist of removal and disposal of buried drums and contained hazardous substances," and "removal and disposal of any visibly contaminated soil encountered during drum removal." (December 18, 2002, Analysis of Alternatives, ECF No. 67-2 at 2.) The Analysis of Alternatives indicated under "Response Category" that an Interim Response was warranted. (December 18, 2002, Analysis of Alternatives, ECF No. 67-2 at 3.) Under "Cleanup Standards," the DEP indicated that "[t]his proposed response is not a final remedial response pursuant to Section 504 of HSCA and therefore is not required to meet the cleanup standards that apply to final remedial responses." (December 18, 2002, Analysis of Alternatives, ECF No. 67-2 at 3.) The DEP concluded that the selected Alternative would be the removal and disposal of the hazardous waste at the Site, and that the area would be filled and graded after removal. (December 18, 2002, Analysis of Alternatives, ECF No. 67-2 at 5.)
On January 4, 2003, the DEP published in the Pennsylvania Bulletin a "Proposed Interim Response and Public Hearing" pertaining to the Site. (33 Pa. Bull. 77-78 (January 4, 2003), ECF No. 62-6 at 3-4.) Therein, DEP indicated that it determined that it was conducting a further investigation and that "[t]he Department determined that removal and disposal of the hazardous materials in the industrial waste area of the Site is the appropriate course of action." (33 Pa. Bull. 77-78 (January 4, 2003), ECF No. 62-6 at 3-4.)
On April 4, 2003, DEP published a "Statement of Decision" pursuant to Section 506(e) of HSCA, 35 P.S. § 6020.506(e). (Statement of Decision, ECF No. 67-4.) Therein, DEP indicated that it had decided to conduct an interim response at the Site and that the response would consist of removal and disposal of the hazardous substances. (ECF No. 67-4 at 2.) The Statement of Decision provided in relevant part as follows:
The Department conducted an investigation of the site from December 2001 to September 2002. A Final Report of the investigation was completed on November 12, 2002. The objectives of the investigation were to characterize the nature and extent of the hazardous substances and contaminants present on the site or that have migrated from the site, assess potential impacts to human health and the environment, and to evaluate potential remedial alternatives appropriate for protecting human health and the environment.
The industrial waste area is approximately 7.8 acres in size and contains pockets of industrial wastes including numerous 55-gallon drums. During the excavation of test pits within the industrial waste area, 17 drums were uncovered. The drums were in various states of disrepair and several were leaking. The 17 drums were removed, over packed, characterized, and disposed off-site. . . . (Statement of Decision, ECF No. 67-4 at 3.) Again, under "Response Category," the DEP indicated that "[a]n interim response is warranted under Section 501 of the [HSCA]," and under "Cleanup Standards," the DEP indicated that "[t]he response is not a final remedial response pursuant to Section 504 of HSCA and therefore is not required to meet the cleanup standards that apply to final remedial responses." (Statement of Decision, ECF No. 67-4 at 3.)
On December 20, 2003, DEP published a "Notice of Proposed interim Response" indicating that it "recently completed an investigation of the Site and is currently conducting an interim response at the [Site] . . . ." (33 Pa. Bull. 6269 (December 20, 2003), ECF No. 62-7 at 3.)
UNDERLYING STATE COURT ACTION
On June 30, 2008, DEP filed a verified Complaint in Equity in the Court of Common Pleas, Westmoreland County, Pennsylvania against Beazer East, Inc., Boldan, Inc., CMU, Exxon, and Viacom, Inc. (State Complaint, ECF No. 64-1.) DEP alleged that the Defendants were liable under the HSCA for cleanup costs allegedly incurred at the Site. DEP averred that it conducted an investigation at the Site in 2001-2002, and an interim response in 2003-2004. (State Complaint, ECF No. 64-1 at ¶¶ 23, 33.) In addition, it repeatedly characterized its response at the Site as an interim response. (State Complaint, ECF No. 64-1 at ¶¶ 30-34.) In response to the filing of preliminary objections, DEP filed an Amended State Complaint, and again referred to its actions from 2001-2002 as an investigation, and that this investigation confirmed a release and threatened release of hazardous substances at the Site. (Amended State Complaint, ECF No. 64-2 at ¶ 27.) The DEP averred that it believed it was necessary to conduct an interim response at the Site and consistently characterized its 2003-2004 actions at the Site as an interim response. (Amended State Complaint, ECF No. 64-2 at ¶¶ 28, 33, 34, 37-47, 50.) CMU and Exxon filed preliminary objections to the State Amended Complaint arguing that the DEP failed to comply with certain provisions of the HSCA when it failed to institute an administrative or judicial enforcement action under other applicable environmental laws against the owner and operator of the Site, Bolden, Inc. In response to Defendants‟ Preliminary Objections to DEP‟s Amended Complaint, DEP again repeatedly referred to its actions at the Site subsequent to the investigation as an interim response, and at one point, distinguished remedial responses from "an interim response like that at issue here . . . ." ...