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Joshua Hill, Inc. v. Whitemarsh Township Auth.

ELR Citation: 32 ELR 20753
Nos. No. 00-3677, 294 F.3d 482/(3d Cir., 06/24/2002)

The court reverses a district court decision that a property owner could not recover response costs under the Pennsylvania Hazardous Sites Cleanup Act (HSCA) because he failed to establish a release or threat of release of hazardous substances. A town previously used the property as a landfill, and when testing revealed hazardous substances in the property's groundwater, the owner brought suit against the town under the HSCA. The district court held that a release did not occur at the property because a release only occurs when a hazardous substance is released from a site and not when it is released at, in, or on the site. The court first holds, however, that the district court misconstrued the definition of "release" under the HSCA. The Act defines a "release" to include the dumping or disposal of hazardous substances into the environment. "Disposal" is further defined as placing hazardous substances into the air, water, or land in a manner that allows the substance to enter the environment. The town's dumping of hazardous materials into an unlined landfill on the property constitutes the placing of materials into the land that allows them to enter the environment. Thus, the town's disposal of hazardous substances constitutes a "release" under the HSCA. The court next holds that the district court's interpretation is at odds with the HSCA's statutory scheme and remedial intent, case law interpreting the Act, and a similar provision under the Comprehensive Environmental Response, Compensation, and Liability Act. The court additionally holds that the owner can recover the costs incurred in testing the site, but he cannot recover litigation costs. The HSCA §1115's citizen suit provision allows recovery of litigation costs, but the owner's suit is a private cost recovery action under HSCA §702, which does not provide for recovery of litigation costs. Additionally, the court remanded for further documentation of some response costs claimed by the property owner.

Counsel for Appellants
Albert G. Bixler
Eckert, Seamans, Cherin & Mellott
1515 Market St., 9th Fl., Philadelphia PA 19102
(215) 851-8400

Counsel for Appellees
Anthony R. Sherr
Mayers, Mennies & Sherr
3031 Walton Rd., Bldg. A., Blue Bell PA 19422
(610) 825-0300

Schwarzer, * J. Before Alito and Roth, JJ.

* The Honorable William W. Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.