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H&H Disposal Services, Inc. v. United States Environmental Protection Agency

United States District Court, E.D. Pennsylvania

August 12, 2019

H&H DISPOSAL SERVICES, INC., Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and UNITED STATES ARMY CORPS OF ENGINEERS, Defendants.

          MEMORANDUM

          ROBERT F. KELLY, SR. J.

         Plaintiff H&H Disposal, Inc. (“H&H”) brings this action against Defendants the United States Environmental Protection Agency (the “EPA”) and the United States Army Corps of Engineers (collectively, “Defendants”) seeking preliminary and permanent injunctions pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9613 et seq.

         Defendants move to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). H&H filed a Memorandum of Law in Opposition to Defendants' Motion to Dismiss and Defendants filed a Reply Brief in Support. Additionally, at the request of the Court, both parties filed supplemental briefing.

         For the reasons noted below, Defendants' Motion to Dismiss the Amended Complaint is granted.

         I. BACKGROUND[1]

         H&H is a tenant holding a 99-year lease at the former site of the Clearview Landfill (the “Landfill”) in Delaware County. (Am. Compl. ¶ 15.) The lease began in 2001, when H&H was founded, and the terms and payments were updated in 2014 and re-executed in February 2018. (Id.) H&H operates on approximately one acre of the total 39 acres encompassing the site. (Id. ¶ 18.) There are several buildings located on the leasehold, which are maintained by H&H. (Id. ¶¶ 22-23.)

         H&H operates a waste hauling and removal business and currently has multiple trash hauling contracts, including contracts with six local townships, commercial buildings, and residential neighborhoods. (Id. ¶¶ 19, 25.) According to H&H, some of its contracts require it to be located in close proximity to the township or within the township itself. (Id. ¶ 26.) The nature of H&H's business also requires unique zoning. (Id. ¶ 28.)

         In 2005, the EPA commenced a CERCLA action against the Landfill. (Id. ¶ 31.) This Court entered a default judgment in favor of the EPA, holding the Landfill liable for site contamination and remedial clean-up costs. (Id.) The EPA never served notice of the 2005 CERCLA action upon H&H. (Id. ¶ 32.)

         The default judgment resulted in an order granting the EPA “immediate and unconditional access to and through all portions of the 39 Acres of Land” and permitted access “for such duration as is necessary to complete all activities necessary to conduct a Remedial Investigation and Feasibility Study, design, implement, operate, and maintain appropriate remedial actions at the Site.” (Id. ¶ 35 (citing Ex. 2, Order Granting Motion for Default Judgment (“2005 Order”), ¶¶ 2-3).) The 2005 Order enjoined the Landfill from interfering with access. (Id. ¶ 36.)

         Defendants have conducted testing, drilled bore holes, moved piles of dirt from one location to another, and dumped more waste on the property from nearby locations. (Id. ¶ 40.) Although the 2005 Order was not directed at any tenants, specifically, H&H has cooperated with Defendants. (Id. ¶¶ 37, 39.) In 2014, the EPA published the result of their nine-year study in a Record of Decision (“ROD”). (Id. ¶ 40.) The ROD outlined the EPA's plan to clean up the Landfill. (Id. ¶ 41.) The ROD also stated that the site could be used in the future for industrial purposes. (Id. ¶ 42 (citing Ex. 3, Record of Decision (“ROD”), § 6.0).) Therefore, H&H was hopeful that it would be able to continue its operations at the site post remediation. (Id. ¶ 43.)

         However, on April 18, 2018, H&H received a Notice to vacate from Defendants, citing their authority under the 2005 Order. (Id. ¶ 44.) H&H alleges that the letter gave it 90 days to vacate without any guarantee of payment of estimated just compensation. (Id. ¶ 45.) H&H alleges that, up until that time, Defendants had only spoken of the “potential” or possibility that H&H might have to vacate. (Id. ¶ 46.) H&H asked for, and received, an extension until September 30, 2018. (Id. ¶ 47.)

         It was learned, sometime on or about August 15, 2018, that the clean-up effort would result in total non-use of the property for any future commercial or industrial use and that this was the reason for Defendants' demand to vacate. (Id. ¶ 48.) At that time, H&H also learned that Defendants could not spare any land on the 39-acre parcel where H&H could continue operating its business enterprise during the remediation process and that Defendants required the total and complete removal and relocation of all businesses situated on the 39-acre parcel. (Id. ¶ 49.)

         According to H&H, it has attempted in good faith to relocate, looking into the possibility of renting or buying a new location. (Id. ¶ 50.) H&H has hired a commercial real estate broker to aid in this search and has considered approximately a dozen alternative property locations, if not more. (Id. ¶ 51.) H&H has encountered some difficulties. (Id. ¶ 53.) Its current lease payments are significantly below market value; therefore, it cannot afford to pay the new market rental rates until, and unless, Defendants pay just compensation and/or relocation benefits to compensate for this difference in rent payments going forward. (Id.) H&H asserts that its current rent is $2, 050 per month, while fair market rent in the area is currently between $8, 000- 10, 000 per month. (Id. ¶ 56.)

         H&H alleges that Defendants believe that this Court's 2005 Order gives them the authority to relocate H&H and demolish the buildings located on the site. (Id. ¶ 58.) Counsel for H&H reminded Defendants, via several phone calls, of Defendants' obligation to comply with the 5th Amendment's “just compensation” requirement and other relevant statutes. (Id. ¶ 59.)

         Defendants recently learned of new ownership of the Landfill, Killeen Disposal, LLC, and filed a motion to amend this Court's 2005 Order to add the new owner. (Id. ¶ 60.) Although not a party, H&H intended to file an answer asking this Court to narrow the scope of its order to only permit the removal of H&H according to the law. (Id. ΒΆ 61.) H&H believed it had 14 days to answer the Defendants' motion, but, before it was able to file, this Court granted ...


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