TRINITY INDUSTRIES, INC.; TRINITY INDUSTRIES RAILCAR CORPORATION, Appellants
CHICAGO BRIDGE & IRON COMPANY
Argued May 15, 2013
On Appeal from the United States District Court for the Western District of Pennsylvania (No. 2-08-cv-01709) District Judge: Honorable Gary L. Lancaster
Heather B. New, Esq. (Argued) Bell Nunnally & Martin, Frederick W. Addision, III, Esq. Nolan C. Knight Munsch, Hardt, Kopf, Harr & Dinan, Leonard G Ambrose, III, Esq. Ambrose, Friedman & Weichler, Attorneys for Appellant.
Cathleen M. Devlin, Esq. (Argued) George E. Rahn, Jr., Esq. Christina D. Riggs, Esq. Saul Ewing, Attorneys for Appellee.
Ignacia S. Moreno, Esq. Aaron P. Avila, Esq. David S. Gualtieri, Esq. United States Department of Justice Environment & National Resources Division, Attorneys for Amicus Appellant.
Steven F. Baicker-McKee, Esq. David D. McKenery, Jr., Esq. Babst, Calland, Clements and Zomnir, P.C., Attorneys for Amicus Appellee.
Before: SMITH, FISHER, and CHAGARES, Circuit Judges.
CHAGARES, Circuit Judge.
In this case we consider the assignment of liability for environmental cleanup under two federal statutes: the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675; and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, et seq. Trinity Industries, Inc. and Trinity Industries Railcar Corporation (together, "Trinity") appeal the order of the United States District Court for the Western District of Pennsylvania, which granted summary judgment to defendant Chicago Bridge & Iron Company ("CB&I") on Trinity's CERCLA and RCRA claims and declined to exercise supplemental jurisdiction over the state-law claims raised by Trinity. We consider the extent to which a settlement of state liability for environmental contamination affects the contribution scheme provided by CERCLA, and whether injunctive relief under RCRA is available when a remediation plan is already underway. For the reasons articulated below, we will affirm in part and vacate and remand in part.
The environmental contamination at issue in this case is located at an industrial facility called the South Plant, located on a fifty-three-acre property in Greenville, Pennsylvania. Having acquired the South Plant in 1988, Trinity manufactured railcars there until 2000 but claims that no manufacturing activity takes place there now. Some buildings in the South Plant are vacant, and some sections of the South Plant are used for storage. In June 2004, the Commonwealth of Pennsylvania started investigating allegations that hazardous substances were being released at the South Plant. Pennsylvania initiated enforcement proceedings against Trinity in 2006, which resulted in Trinity's entering into an agreement whereby it pleaded nolo contendere to five misdemeanor counts of unlawful conduct. Furthermore, on December 21, 2006, Trinity and the Pennsylvania Department of Environmental Protection ("PaDEP" or "DEP") entered into a consent order ("Consent Order") whereby Trinity agreed to fund and conduct "Response Actions" according to a schedule approved by DEP. The Consent Order was entered into pursuant to Pennsylvania's Hazardous Sites Cleanup Act ("HSCA"), 35 Pa. Stat. § 6020.101, et seq., and Land Recycling and Environmental Remediation Standards Act ("LRA"), 35 Pa. Stat. § 6026.101, et seq. See Appendix ("App.") 36-62.
Trinity claims to have undertaken "preliminary investigative work in anticipation of cleanup, " but "has yet to perform shovel-in-the-ground remediation." Trinity Br. 55. The Consent Order names Trinity as a "responsible person" for the release of hazardous substances at the South Plant but, Trinity claims, also "expressly reserve[s] [Trinity's] right to pursue its cost recovery, contribution, and other claims against CB&I." Trinity Br. 13. Specifically, the Consent Order indicates that nothing contained therein "shall constitute or be construed as a release or covenant not to sue" parties not named in the Consent Order; moreover, "Trinity expressly reserve[s] the right to sue or continue to sue, or seek any other appropriate relief from" any party not named in the Consent Order. App. 60.
Trinity's claims are based on CB&I's alleged role in causing the contamination now under remediation at the South Plant. Trinity purchased the South Plant from MBM Realty Associates ("MBM") in 1988, which had purchased it from defendant CB&I in 1985. In 1910, CB&I constructed a facility for the manufacture of steel products such as storage tanks, pressure vessels, water towers, and bridge components, which it operated throughout its seventy-five-year ownership of the South Plant. Trinity alleges that CB&I contaminated several identified sections of the South Plant through abrasive blasting, "pickling" (which involves submerging steel plates in acid), and painting. Trinity points to deposition testimony from a former CB&I employee, Ken Montesano, who (like other deponents) confirmed that CB&I's activities left residual materials on the site. App. 224-34. Trinity alleges that this residue is responsible for some of the environmental contamination at the South Plant.
After signing the Consent Order with Pennsylvania that bound it to undertake remediation of the South Plant, Trinity filed the instant lawsuit under CERCLA, RCRA, and state law, seeking contribution from CB&I for its share of remediation costs and injunctive relief ordering CB&I's participation in the remediation. The District Court granted summary judgment to CB&I on the CERCLA and RCRA claims and, declining to exercise supplemental jurisdiction, dismissed the remaining state-law claims without prejudice as to the assertion of the state-law claims in state court. Trinity appealed the grant of summary judgment. The United States filed an amicus brief in support of Trinity. Greenlease Holding Company, the defendant in a similar CERCLA/RCRA ...