Pa. Dep't of Envtl. Prot. v. Trainer Custom Chem., LLC , 906 F.3d 85 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2607
_____________
PENNSYLVANIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Appellant
v.
TRAINER CUSTOM CHEMICAL, LLC;
JAMES HALKIAS; JEREMY HUNTER
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-cv-01232)
District Judge: Hon. Eduardo C. Robreno
_______________
Argued
July 16, 2018
Before: JORDAN, SHWARTZ, and KRAUSE, Circuit
Judges
(Filed: October 5, 2018)
_______________
Alexandra C. Chiaruttini, Chief Counsel
Douglas G. White, Supervisory Counsel [ARGUED]
Brian G. Glass
Pennsylvania Department of Environmental Protection
2 East Main Street, 4th Floor
Norristown, PA 19401
Counsel for Appellant
Lloyd R. Hampton [ARGUED]
Hampton & Hampton
400 Broad Street
Route 61
Ashland, PA 17921
Counsel for Appellees Trainer Custom Chemical, LLC
and Jeremy Hunter
Joseph A. Malley, III
Law Office of Joseph A. Malley III
15 East Second Street
P. O. Box 698
Media, PA 19063
Counsel for Appellees Trainer Custom Chemical, LLC
and James Halkias
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
We are asked in this interlocutory appeal to decide
whether the owner of a piece of land is liable for the costs of
2
an environmental cleanup that took place there before the
owner acquired it. Our answer is yes.
Trainer Custom Chemical, LLC (“Trainer”) acquired a
property known as the Stoney Creek Site (the “Site”) for
$20,000, after Pennsylvania’s Department of Environmental
Protection (“PADEP”) had already incurred over $818,000 in
environmental cleanup costs at the Site. The cleanup costs
continued to mount following Trainer’s acquisition of the
property, both because of pre-existing pollution and because
buildings on the Site were demolished by one or both of
Trainer’s principals, Jeremy Hunter and James Halkias, which
caused further contamination.
PADEP sued Trainer, Hunter, and Halkias for
violations of the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), 42 U.S.C.
§§ 9601-28,1 and Pennsylvania’s Hazardous Sites Cleanup
Act (“HSCA”), 35 Pa. Stat. §§ 6020.101-.1305, and sought to
recover all of its response costs related to the Site, regardless
of when those costs arose. At summary judgment, the
District Court drew a temporal line, holding Trainer liable
under both statutes for the response costs incurred after
Trainer took ownership of the Site but not for the costs that
arose before. Although the Court directed the parties to
proceed to trial on damages, PADEP disagreed with the
temporal distinction drawn by the Court and filed this
interlocutory appeal.
1
CERCLA § 1 et seq. is codified at 42 U.S.C. § 9601et seq.
3
We conclude that a current owner of real property is
liable under both CERCLA and HSCA for all response costs
in an environmental cleanup, including costs incurred before
the owner acquired the property. Accordingly, we will affirm
in part, vacate in part, and remand for further proceedings
consistent with this opinion.
I. BACKGROUND
A. Facts
1. The Site Before Trainer Acquired It
The Site is located in Trainer Borough, Delaware
County, Pennsylvania. In 2007, it was owned by Stoney
Creek Technologies (“SCT”), which primarily used it for
making corrosion inhibitors, fuel additives, and oil additives.
Buildings and equipment used in creating SCT’s products
were located on the Site, including a laboratory and a water
treatment facility. SCT also kept various hazardous
substances at the Site, including about three million gallons of
flammable or combustible chemicals that posed a threat of
release, and over seventeen million pounds of other chemical
inventory, which included flammable, combustible, and
corrosive chemicals.
PADEP investigated the environmental risk at the Site
and determined in 2007 that “there is a release or threat of
release of hazardous substances or contaminants, which
presents a substantial danger to human health or the
environment[.]” (App. at 34.) Accordingly, PADEP and the
4
United States Environmental Protection Agency (“EPA”)
initiated removal actions.2
SCT was in financial trouble and could not afford the
expenses involved in the cleanup. One such expense was for
the electricity to power pollution control and security
equipment, including a vaporized nitrogen system. The
nitrogen system was necessary to minimize the threat of fire
posed by the flammable and combustible chemicals on the
Site. Due to lack of payment, the power company was going
to shut off the electricity to the Site, so PADEP assumed
responsibility for paying the electrical bills.
2. Trainer’s Acquisition of the Site
The same financial straits that had apparently led SCT
to fall behind in paying for electricity also led it to become
delinquent in paying real estate taxes. Consequently, the Tax
Claim Bureau of Delaware County forced a sale of the Site.
In what was evidently a coordinated effort, Hunter and
2
Generally, “removal actions are short term responses
to a release or threat of release while remedial actions involve
long term remedies.” Black Horse Lane Assoc., L.P. v. Dow
Chem. Corp., 228 F.3d 275, 293 (3d Cir. 2000) (citation
omitted). “The statute defines ‘response’ as ‘remove,
removal, remedy, and remedial action[.]’” Id. at 292 (quoting
42 U.S.C. § 9601(25)). The record contains some
inconsistency as to when removal actions at the Site began.
For example, one report indicates that the EPA began its
response in October 2008. Nevertheless, it is undisputed that
removal actions commenced before Trainer became the
owner of the Site.
5
Halkias purchased the property and put its title in Trainer’s
name. Hunter signed the purchase agreement, the recitals of
which plainly stated that the Site had ongoing “environmental
issues ... [and] environmental remediation.” (App. at 53.)
Despite that warning, on October 4, 2012, Halkias tendered a
cashier’s check for $20,000 and a handwritten note indicating
that the deed to the property should be made out to Trainer
Custom Chemical LLC. The next day, Halkias and Hunter
officially formed Trainer Custom Chemical LLC by filing a
Certificate of Organization with the Pennsylvania Department
of State. On October 9, 2012, the deed to the Site was
executed and put in Trainer’s name.
3. The Site After Trainer Acquired It
The EPA and PADEP completed their removal actions
at the Site on December 12, 2012.3 But that was not the end
of the problems there. After Trainer acquired the Site, either
Hunter or Halkias or both – they point the finger of blame at
each other – demolished many of the Site’s structures.
Regardless of who was responsible, it is undisputed that
metals and other salvageable materials reclaimed from the
Site were sold for at least $875,000 to JK Myers Contracting,
a business that Halkias had registered with the Pennsylvania
Corporations Bureau in April 2012.
3
There is some ambiguity in the record on the date of
completion. PADEP’s reply brief notes December 10, 2012
as the date of completion, but an EPA website referenced in
the briefing indicates the date to be May 2, 2013. The
discrepancy is immaterial to this case.
6
In June 2014, PADEP received two reports assessing
environmental concerns at the Site. One noted that “[t]he
[]EPA has acknowledged that hazards still exist at the Site[.]”
(App. at 61.) The report further said that, during a recent visit
to the Site, PADEP “observed active demolition activities
being conducted on several structures throughout the Site[,]”
and “[s]everal storage tanks were observed to be cut open and
unknown contents were noted to be spilling onto the ground.”
(App. at 62.) The other report indicated that buildings on the
Site had asbestos-containing materials that needed to be
removed before demolition.
B. Procedural History
PADEP sued Trainer, Halkias, and Hunter under
CERCLA and HSCA to recover the costs incurred in cleaning
up the Site. The complaint was in six counts: separate ones
against each of the three defendants under CERCLA § 107(a),
42 U.S.C. § 9607(a), and, again, separate ones against each of
them under HSCA §§ 701 and 702, 35 Pa. Stat. §§ 6020.701,
6020.702.
Eventually, PADEP moved for summary judgment,
arguing that the defendants should be jointly and severally
liable for all of the environmental response costs. In total,
those costs were $932,580.12, through November 2015. The
most significant charges were payments for electricity
amounting to $818,730.50 through June 2009, before Trainer
acquired the Site. PADEP also bore other response costs after
Trainer took ownership.
The District Court granted summary judgment in part
and denied it in part. The Court noted that PADEP’s claims
7
against Halkias and Hunter were based on a theory of
piercing Trainer’s corporate veil, so the initial question it
sought to answer, and the question before us in this
interlocutory appeal, is whether Trainer was liable for
violations of CERCLA and HSCA. With respect to CERCLA
liability, “the Court [held] [Trainer] liable for any response
costs incurred after [Trainer] took ownership of the Site, but
not for costs incurred beforehand.” (App. at 99-100.) As to
CERCLA damages, it denied summary judgment because
there was a genuine dispute of material fact concerning the
amount of damages for which Trainer was liable. The Court
reached the same conclusions with respect to HSCA liability
and damages.
PADEP disagreed with the District Court’s decision to
grant summary judgment only in part. It sought an order
certifying for interlocutory appeal the issue of whether federal
and Pennsylvania law “make an owner liable for response
actions and response costs attributable to an identified release
of hazardous substances which continues at the time of that
person’s ownership, regardless of when such actions or
response costs were taken or incurred.” (App. at 114-15.)
The District Court granted certification, and PADEP then
petitioned us for permission to appeal, which we gave
pursuant to 28 U.S.C. § 1292(b).
II. STATUTORY BACKGROUND
A. CERCLA
“Congress enacted CERCLA ‘to promote the timely
cleanup of hazardous waste sites and to ensure that the costs
of such cleanup efforts were borne by those responsible for
8
the contamination.’” Litgo N.J. Inc. v. Comm’r N.J. Dep’t of
Envtl. Prot., 725 F.3d 369, 378 (3d Cir. 2013) (quoting
Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S.
599, 602 (2009)). Section 107(a)(4)(A) of CERCLA gives
states “the right to recover costs incurred in cleaning up a
waste site from ‘potentially responsible parties’ (PRPs)—four
broad classes of persons who may be held strictly liable for
releases of hazardous substances that occur at a facility.”
Litgo N.J. Inc., 725 F.3d at 378. Those four classes of PRPs
are: the owner or operator of a facility, 42 U.S.C.
§ 9607(a)(1); anyone who owned or operated the facility
when there was a disposal of a hazardous substance, id.§ 9607(a)(2); anyone who arranged for the disposal or
treatment, or arranged for the transport for disposal or
treatment, of hazardous substances at the facility, id.
§ 9607(a)(3); and anyone who accepted hazardous substances
for transport to sites selected by such persons, id.
§ 9607(a)(4). United States v. CDMG Realty Co., 96 F.3d
706, 713 (3d Cir. 1996). “Once an entity is identified as a
PRP, it may be compelled to ... reimburse the [g]overnment
for ... past and future response costs.” Burlington, 556 U.S. at
609.
Our focus here is on the first category of PRPs: “the
owner ... of ... a facility[.]” 42 U.S.C. § 9607(a)(1); accord
United States v. Nicolet, Inc., 857 F.2d 202, 210 (3d Cir.
1988). We refer to that category of PRP in this appeal as
simply the “owner,” or, more particularly, the “current
owner.”4 CDMG Realty Co., 96 F.3d at 713.
4
While CERCLA does not use the word “current” as
a modifier for “owner,” we have held that § 107(a)(1)
includes “current owners” as potentially responsible parties.
9
In § 107 cost recovery actions, summary judgment on
the issue of liability may be appropriate “even when genuine
issues of material fact remain as to ... damages.” United
States v. Alcan Aluminum Corp., 990 F.2d 711, 720 (2d Cir.
1993) (“Alcan 1993”). Defendants may be held jointly and
severally liable in a cost recovery action, United States v.
Alcan Aluminum Corp., 964 F.2d 252, 268 (3d Cir. 1992)
(“Alcan-Butler”), but they can also seek to limit that liability
by demonstrating that the contamination “is divisible and
reasonably capable of apportionment[,]” id. at 269; accord
Alcan 1993, 990 F.2d at 721-23.5
See, e.g., Litgo, 725 F.3d at 381; CDMG Realty Co. 96 F.3d
at 713. And although the statute uses the language “owner
and operator[,]” stated in the conjunctive, many courts have
concluded that the language should be read in the disjunctive.
See e.g., Commander Oil Corp. v. Barlo Equip. Corp., 215
F.3d 321, 328 (2d Cir. 2000) (“It is settled in this circuit that
owner and operator liability should be treated separately.”);
Long Beach Unified Sch. Dist. v. Dorothy B. Godwin Cal.
Living Tr., 32 F.3d 1364, 1367 (9th Cir. 1994) (“Like other
courts, we read these categories [of ‘owner’ and ‘operator’] in
the disjunctive.”). We too have described § 107(a)(1) in
disjunctive language. See CDMG Realty Co., 96 F.3d at 713(stating a “current owner or operator of a facility” is a PRP).
5
There is some disagreement in the case law over
whether divisibility is properly addressed at the liability phase
or damages phase of a cost recovery action. We have said
that it is best to resolve a divisibility inquiry “at the initial
liability phase” because “it involves precisely relative degrees
of liability[,]” Alcan-Butler, 964 F.2d at 270 n.29, but the
10
B. HSCA
HSCA is Pennsylvania’s state law counterpart to
CERCLA. Cf. In re Joshua Hill, Inc., 294 F.3d 482, 489-91
(3d Cir. 2002) (supporting analysis of HSCA claims by
relying on analogous CERCLA provisions). Like CERCLA,
HSCA defines classes of persons who are legally liable for a
release or threatened release of hazardous substances, and the
owner of a contaminated site is one such person. 35 Pa. Stat.
§ 6020.701(a). A current owner is strictly liable for
environmental response costs, including those incurred by the
Commonwealth of Pennsylvania. Id. § 6020.702(a).
Although CERCLA and HSCA have differences, there are
instances in which “liability under ... HSCA mirrors liability
under CERCLA” because “§ 702(a) of ... HSCA mirrors
§ 107(a) of CERCLA.” Agere Sys., Inc. v. Adv. Envtl. Tech.
Corp., 602 F.3d 204, 236 (3d Cir. 2010). In this matter, no
one asserts that owner liability under CERCLA § 107(a) and
under HSCA §§ 701 and 702 is anything other than
Second Circuit has questioned that approach, see Alcan 1993,
990 F.2d at 723 (stating that approach “may be contrary to the
statutory dictates of CERCLA” and instead leaving the choice
of when to address divisibility “to the sound discretion of the
trial court”). We do not attempt to resolve that disagreement
now, however, because no party raised it before the District
Court or to us on appeal. We simply note that nothing we say
here with respect to current owner liability under § 107(a)(1)
is meant to change our precedent addressing divisibility in a
§ 107 cost recovery action.
11
practically the same for all relevant purposes.6 Therefore, our
resolution of Trainer’s liability under CERCLA also decides
Trainer’s liability under HSCA.
III. DISCUSSION7
At the outset, we note that all parties and the District
Court agree that Trainer is the owner of the Site and, pursuant
to CERCLA § 107(a)(1), is at least liable for environmental
6
Our decision today does not imply that relevant
distinctions may not emerge in other cases, but no relevant
difference has been suggested to us here.
7
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1367. We have jurisdiction over this
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). “The
scope of our review in a permitted interlocutory appeal is
limited to questions of law raised by the underlying order.
We are not limited to answering the questions certified,
however, and may address any issue necessary to decide the
appeal.” Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir.
1999).
“We review the grant or denial of a motion for
summary judgment de novo,” id., and “apply[] the same
standard employed by the district court[,]” Trinity Indus., Inc.
v. Chi. Bridge & Iron Co., 735 F.3d 131, 134 (3d Cir. 2013).
“Summary judgment is appropriate only if, after drawing all
reasonable inferences in favor of the non-moving party,”
which in this case is Trainer, “there exists ‘no genuine dispute
as to any material fact.’” Trinity Indus., Inc. v. Greenlease
Holding Co., --- F.3d ---, No. 16-1994, 2018 WL 4324261, at
*19 (3d Cir. Sept. 11, 2018) (citation omitted).
12
response costs incurred after it took ownership. Taking that
concession as our starting point, our task is to decide whether
the meaning of “all costs” in § 107(a) includes response costs
incurred before Trainer acquired the Site. We conclude that,
given the structure and text of CERCLA, a current owner
under § 107(a)(1) is indeed liable for all response costs,
whether incurred before or after acquiring the property.
“Statutory interpretation, as we always say, begins
with the text.” Rotkiske v. Klemm, 890 F.3d 422, 424-25 (3d
Cir. 2018) (en banc) (quoting Ross v. Blake, 136 S. Ct. 1850,
1856 (2016)). We derive the “legislative intent of Congress
... from the language and structure of the statute itself[.]”
United States v. Lanier, 520 U.S. 259, 267 n.6 (1997). We
therefore begin our analysis by looking at the text of the
CERCLA provision that makes a current owner liable for
response costs and then consider that provision’s place within
the larger framework of the statute.
Section 107(a) provides that “the owner ... of ... a
facility ... shall be liable for ... all costs of removal or
remedial action incurred by ... a State ... not inconsistent with
the national contingency plan[.]” 42 U.S.C. § 9607(a);
accord Nicolet, 857 F.2d at 210. That is a statement of
remarkable breadth, but a statute may be broad in scope and
still be quite clear. See In re Phila. Newspapers, LLC, 599
F.3d 298, 310 (3d Cir. 2010), as amended (May 7, 2010).
The term “all costs” means just that; it does not distinguish
between costs that were incurred before ownership and those
incurred afterwards. Because there is no such distinction,
there is no temporal limitation on the liability for costs. If
Congress had intended for “all costs” to mean anything less
than “all,” we assume it would have so specified. The plain
13
text thus leads us to conclude that the words “all costs”
include costs incurred before ownership and costs incurred
after ownership.
The structure of CERCLA, as amended, reinforces that
reading of the statute. “The Supreme Court has stated
consistently that the text of a statute must be considered in the
larger context or structure of the statute in which it is found.”
United States v. Tupone, 442 F.3d 145, 151 (3d Cir. 2006).
And “[w]here Congress explicitly enumerates certain
exceptions to a general prohibition, additional exceptions are
not to be implied, in the absence of evidence of a contrary
legislative intent.” TRW Inc. v. Andrews, 534 U.S. 19, 28
(2001) (citation omitted). CERCLA already provides a
number of potential limits on PRP liability. There are statutes
of limitations for § 107 cost recovery actions, 42 U.S.C.
§ 9613(g)(2),8 the innocent owner defense to § 107(a)
liability, id. §§ 9601(35)(A), 9607(b)(3); CDMG Realty Co.,
96 F.3d at 716 & n.6,9 and the bona fide prospective
8
An initial cost recovery action under § 107 “must be
commenced ... for a removal action, within 3 years after
completion of the removal action, ... and ... for a remedial
action, within 6 years after initiation of physical on-site
construction of the remedial action[.]” 42 U.S.C.
§ 9613(g)(2).
9
“To establish the innocent owner defense, the
defendant must show that ‘the real property on which the
facility is located was acquired by the defendant after the
disposal or placement of the hazardous substance on, in, or at
the facility’ and that ‘[a]t the time the defendant acquired the
facility the defendant did not know and had no reason to
14
purchaser defense to § 107(a)(1) current owner liability, 42
U.S.C. §§ 9601(40), 9607(r).10 We therefore decline to read
an additional limitation into the statute by imposing a new
temporal frame on the meaning of “all” in the term “all
costs.”
Moreover, the provision in CERCLA for contribution
actions, § 113(f), also supports reading “all costs” to include
costs incurred before a current owner acquired a property. Id.
§ 9613(f). Through § 113(f), response costs can be
reassigned to a more culpable party. Id.; see Litgo N.J. Inc.,
725 F.3d at 383 (“After identifying PRPs, courts allocate
response costs based on equitable factors.”). When
know that any hazardous substance which is the subject of the
release or threatened release was disposed of on, in, or at the
facility.’” CDMG Realty Co., 96 F.3d at 716 & n.6
(alteration in original) (citing 42 U.S.C. §§ 9601(35)(A),
9607(b)(3)).
10
A bona fide prospective purchaser is one who,
among other things, has “made all appropriate inquiries into
the previous ownership and uses of the facility” and
“exercises appropriate care with respect to hazardous
substances found at the facility[.]” 42 U.S.C. § 9601(40).
Such a purchaser “shall not be liable” as “an owner or
operator of a facility” under § 107(a)(1) “as long as [it] does
not impede the performance of a response action or natural
resource restoration.” Id. § 9607(r)(1). The statute further
provides that, even if a new owner qualifies as a bona fide
prospective purchaser, the new owner would not be entitled to
a windfall profit. Id. § 9607(r)(2)-(3).
15
apportioning cleanup costs, courts consistently pay attention
to who has participated in response efforts without slowing or
interfering with that process. See, e.g., id. at 383, 388-89
(citing cases when cooperative PRP current owners were
apportioned 0%, 5%, and 10% of remediation costs). Thus,
when a PRP must bear “more than its fair share” of cleanup
costs resulting from a § 107 cost recovery action, it can seek a
more equitable distribution of those costs through a
contribution action against other PRPs. United States v. R.W.
Meyer, Inc., 889 F.2d 1497, 1506-08 (6th Cir. 1989).
Finally, the Small Business Liability Relief and
Brownfields Revitalization Act of 2002, Pub. L. No. 107-118,
115 Stat. 2356 (codified at 42 U.S.C. §§ 9601, 9607),
provides logical support for the conclusion that a current
owner is liable for response costs incurred before the change
in ownership of the property.11 As just noted, see supra note
8, Congress added a provision from that Act – the bona fide
prospective purchaser defense – to CERCLA to allow a
prospective purchaser to be exempted from § 107(a)(1)
liability, if that purchaser, among other requirements, “made
all appropriate inquiries into the previous ownership and uses
of the facility” and “exercise[d] appropriate care with respect
to hazardous substances found at the facility[.]” 42 U.S.C.
§ 9601(40). But that defense is limited because even a
careful prospective purchaser is not totally off the hook – the
amendment allows the United States to obtain a lien on the
property for its “unrecovered response costs.” Id.11
The District Court noted in its order certifying the
interlocutory appeal that the bona fide prospective purchaser
defense “might support [PADEP]’s position.” (App. at 157
(emphasis omitted).)
16
§ 9607(r)(2). No one has invoked the defense here, and, in
any event, it allows only the United States to obtain a lien,
while in this instance Pennsylvania is the one seeking to
recover response costs. Nevertheless, that provision, by its
very existence, indicates that Congress contemplated
scenarios in which a current owner could be liable for
response costs incurred before ownership transferred.
Therefore, based on CERCLA’s text and structure, the
meaning of “all costs” in § 107(a) includes costs incurred
both before and after a current owner acquired the property.12
12
The District Court concluded otherwise based on
California Department of Toxic Substances Control v.
Hearthside Residential Corp., 613 F.3d 910 (9th Cir. 2010),
but that decision gives no guidance as to the meaning of “all
costs” in § 107(a). Rather, the Hearthside court addressed
which of two entities was a current owner of a property for
purposes of § 107(a)(1). 613 F.3d at 911-12. One was a
corporation that had owned the property while all cleanup
costs were incurred, and the other was the state’s land
commission that owned the property at the time the lawsuit
was filed but not at any time when costs had been incurred.
Id. at 912. The court held that an owner of a property at the
time cleanup costs are incurred cannot avoid liability for such
costs by selling the property prior to the filing or initiation of
a response action by the government and, therefore, that the
party who owned the property at issue at the time the cleanup
costs were incurred was a responsible party. Id. at 911, 916.
Hearthside does not stand for the proposition that it is
permissible to temporally partition § 107(a)(1) liability with
respect to cleanup costs. Here, because Trainer “[did] not
dispute that [it], as the owner and operator of the Site, [was] a
17
As mentioned at the outset, that means that Trainer is liable
for the removal costs at the Site regardless of when those
costs were incurred. And because we conclude that Trainer is
liable under CERCLA, we also conclude that it is liable under
HSCA. See supra Section II.B.13
responsible party under CERCLA[,]” (App. at 94); see supra
Section III, there was no need to turn to Hearthside to
determine again whether Trainer was a current owner of the
Site.
13
Specifically, as under CERCLA, there is no
ambiguity under HSCA that Trainer is liable for all response
costs, including those incurred prior to its ownership. First,
Trainer is a “responsible person” because it “own[ed] or
operate[d] the site” (1) “when a hazardous substance [wa]s
placed or [came] to be located in or on the site,”
§ 6020.701(a)(1)(i), or (2) “during the time of the release or
threatened release,” id. § 60020.701(a)(1)(iii). There were
hazardous substances located on the site at the time Trainer
took ownership and there has been a release or threatened
release since that time. Second, a responsible person is
“strictly liable for response costs and damages which result
from the release or threatened release of hazardous
substances,” id. § 6020.702(a), which includes “[r]easonable
and necessary or appropriate costs of remedial response
incurred by the United States [or] the Commonwealth.” id.
§ 6020.702(a)(2). Here, PADEP has incurred “[r]easonable
and necessary or appropriate costs of remedial response,” id.
§ 6020.702(a)(2), resulting from the release or threatened
release. Third, exceptions to responsible party status do not
apply because at least one of the defendants knew or had
reason to know “a hazardous substance which is the subject
18
Nothing in our decision today regarding liability for
“all costs” is meant to affect established precedent concerning
CERCLA damages. How exactly damages are assessed
against or apportioned among PRPs in any particular case is a
matter to be decided according to existing statutory and
decisional law.
IV. CONCLUSION
For the foregoing reasons, we will affirm in part,
vacate in part, and remand for further proceedings. We will
affirm the District Court’s order that Trainer is liable under
CERCLA and HSCA for PADEP’s response costs incurred
after it acquired the Site, but we will vacate the District
Court’s order with respect to Trainer’s liability for PADEP’s
response costs incurred before acquisition of the Site. Given
that disposition, we do not need to address the remaining
aspects of the District Court’s decision. The matter is
remanded for further proceedings consistent with this
opinion.
of the release or threatened release was disposed of on, in, or
at the site.” id.§ 6020.701(b)(vi)(A).
19