In a case of first impression in the Third Circuit, the Honorable Eduardo C. Robreno has held that the Pennsylvania Department of Environmental Protection (“PADEP”) may not, under CERCLA, recover costs from current landowners if the costs were incurred prior to the owner's purchase of contaminated property.  In PADEP v. Trainer Custom Chemical LLC, No. 15-1232 (E.D. Pa. Aug. 30, 2016), PADEP sought to recover, among other things, over $800,000 in electricity bills which it had paid prior to October, 2012 to keep certain remediation equipment operating at the Stoney Creek Technologies Superfund Site (the “Site”), which Site was subsequently purchased by the defendant, Trainer Custom Chemical, LLC.  PADEP's claim for such costs was rejected by Judge Robreno, who held that “a new owner is not liable for recovery costs incurred before he took ownership of the facility.”  Id. at *21.

Under Section 107(a) of CERCLA, there are four classes of potentially responsible parties:  current owners and operators of facilities, past owners and operators, arrangers and transporters.   The last three categories are defined by their involvement in  the disposal of hazardous substances.  Thus, a past owner or operator is liable if it owned the facility “at the time of disposal of any hazardous substance.”  Similarly, arrangers an transporters are liable for their activities in arranging for the disposal of, or transporting for disposal, hazardous substances.  But there is no such limitation on the definition of a current owner or operator, and hence the court was faced with determining “what is the temporal definition of an ‘owner’ under CERCLA?”  Id. at *18.  Relying on a decision from the Ninth Circuit, apparently the only one of its kind, and common sense, the Court held that for the purposes of CERCLA, an “owner” is one who owns the facility at the time recovery costs are incurred, not at the time suit is brought to recover those costs.  In short, Judge Robreno sensibly interpreted a statute that is not always so prudently construed.

Share | Email| Print| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Pennsylvania, Pennsylvania Department of Environmental Protection, Real Estate, Remediation, Removal, Superfund, Third Circuit