Rights to Obtain Damages Under Pennsylvania Environmental Citizen Suit Provisions After Centolanza and Redland Soccer Club

Robert B. McKinstry Jr.

Editors' Summary: According to prevailing precedent, the citizen suit provisions of environmental statutes do not entitle plaintiffs to a private right-of-action for damages. However, two recent decisions by the Pennsylvania Supreme Court appear to expand the remedies available under the citizen suit provisions of two state environmental statutes to include private causes-of-action. This Article examines the two decisions and the subsequent ambiguous case law applying the decisions. It then argues that the reasoning employed to extend private remedies under the two statutes can be applied to the citizen suit provisions of the majority of Pennsylvania's environmental statutes. Further, the Article asserts that private causes-of-action for damages under state environmental statutes offer potential plaintiffs additional substantive and procedural advantages including broad coverage, presumptions of liability, feeshifting provisions, and a lack of statutes of limitations. Although many unresolved questions remain as to the interplay between a state environmental statute's private right-of-action for damages and other state laws, such as the state brownfields law, the Article concludes that such unresolved questions will only be answered by inevitable future litigation.

Robert B. McKinstry Jr. is the co-partner-in-charge of the environmental practice group of Ballard, Spahr, Andrews & Ingersoll's Philadelphia office. He received his B.A. with honors from Swarthmore College, an M.F.S. from the Yale School of Forestry and Environmental Studies, and a J.D. from the Yale Law School. Prior to beginning private practice, he served as a law clerk to the Hon. Hames L. Latchum, then Chief Judge of the U.S. District Court for the District of Delaware. Mr. McKinstry is a past president and current board member of the Pennsylvania Resources Council, Inc.

[28 ELR 10653]

Two recent decisions by the Pennsylvania Supreme Court, Centolanza v. Lehigh Valley Dairies, Inc.¹ and Redland Soccer Club, Inc. v. Department of the Army,² appear to presage the expansion of remedies available to plaintiffs under the citizen suit provisions of Pennsylvania's environmental statutes. In a trend that directly contradicts the U.S. Supreme Court's decision for federal environmental statutes in Meghrig v. KFC Western, Inc.,³ the Pennsylvania Supreme Court held that the citizen suit provisions of two state environmental statutes entitled plaintiffs to a private right-of-action for property damage and loss of property value in Centolanza and for personal injury in Redland Soccer Club. While it is possible that the two holdings could be restricted to the particular facts and statutes involved, the Pennsylvania Supreme Court's reasoning is better suited to the extension of the damage remedies to other state environmental citizen suit provisions.

The Pennsylvania Supreme Court's Decision in Centolanza

Centolanza is perhaps the more significant of the two decisions, in that its reasoning better lends itself to its application to other environmental statutes. In Centolanza, the court decided that the citizen suit provision of the Pennsylvania Storage Tank and Spill Prevention Act (Tank Act)⁴ authorized a private claim for property damages, including loss of property value. The Tank Act's citizen suit provision construed in Centolanza is a relatively "plain vanilla" environmental citizen suit provision, differing little from those of many other environmental statutes. Although the court's reasoning is arguably flawed in many respects, as the pronouncement of the state's highest court, it will be persuasive in arguments for the extension to other statutes of the causes-of-action under which property damages can be obtained.

Like most other Pennsylvania citizen suit provisions, Tank Act § 1305(c), on its face, allows citizens to bring actions to enforce the Act's provisions:

Except as provided in subsection (d), any person having an interest which is or may be affected may commence a civil action on his behalf to compel compliance with this act or any rule, regulation, order, or permit issued pursuant to this act by any owner, operator, landowner, or occupier alleged to be in violation of any provision of this act or any rule, regulation, order, or permit issued pursuant to this act ….⁵

[28 ELR 10654]

Section 1305 includes other requirements typical of citizen suit provisions in both state and federal environmental laws, including the requirement to provide 60 days' prior notice of intent to file suit to the defendant and the Pennsylvania Department of Environmental Protection (PADEP), a prohibition against filing suit if the PADEP has initiated an enforcement action together with the grant of a right to intervene, and a provision for the award of attorneys fees and costs.⁶

In Centolanza, plaintiffs, the owners of an automobile repair shop, alleged that oil from underground storage tanks on the neighboring property owned by the defendant, Lehigh Valley Dairies, Inc., had leaked onto their property, requiring cleanup and remedial action. Plaintiffs brought suit against Lehigh Valley, seeking future costs and property damages, and raising claims under the Tank Act. The defendant moved for summary judgment on the Tank Act claims, contending that there was no private right-of-action available under that Act, and the common pleas court granted the motion. The Superior Court reversed, holding that the Tank Act does provide a private right-of-action and that plaintiffs could avail themselves of the Tank Act's presumption that a tank owner is responsible for all "damages, contamination or pollution within 2,500 feet of the perimeter of a storage tank containing or which contained a regulated substance of the type which caused the damage, contamination, or pollution."⁷ Although the Superior Court held that the citizen suit provision provided a private cause-of-action, it did not hold that damages for diminution of property value could be sought under the citizen suit provision.

The Pennsylvania Supreme Court granted allocatur and affirmed the Superior Court, on the issues of (1) whether the Tank Act creates a private right-of-action for property damages and (2) whether plaintiffs can avail themselves of the Tank Act's presumption of liability. The Pennsylvania Supreme Court first examined the words of the Tank Act's citizen suit provision, finding that the words "compel compliance" were not sufficiently clear to allow it to determine whether a private citizen could obtain damages. The court then looked to the purposes and goals of the statute and found that the statute was enacted to protect health and safety, that the legislature established liability forreleases, and that the statute created a cleanup scheme for instances where releases occurred. Reasoning that remedial statutes should be interpreted broadly, the court held that it should construe the citizen suit broadly to allow "a private cause of action … to collect costs for cleanup and diminution in property value."⁸ The court appeared to construe only the citizen suit provision, and it did not find that a cause-of-action was created by other provisions of the Tank Act that might have more precisely defined a private right-of-action for damages. For example, unlike at least one lower court, the Pennsylvania Supreme Court did not rely upon the declaration in the Tank Act that violations of the Tank Act constituted a nuisance, except to the extent that such a provision, along with many others, supported a broad interpretation of the citizen suit provision.⁹ The court also held that private citizens could avail themselves of the Tank Act's presumption of liability.

The Pennsylvania Supreme Court's decision in Centolanza has been widely criticized. The reasoning of the Supreme Court in Meghrig, which found no private right-of-action for damages under the citizen suit provision of the federal Resource Conservation and Recovery Act (RCRA),¹⁰ would appear to apply equally to a Tank Act citizen suit. The words "compel compliance" in the Tank Act citizen suit provision, in their normal sense, appear to contemplate actions for injunctive relief and do not suggest an action for damages, as would be required to find the words ambiguous. The "compel compliance" language is, in fact, more limited in scope than the RCRA citizen suit provision construed in Meghrig, because the RCRA citizen suit provision authorizes suits "to restrain or abate" imminent hazards¹¹ and suits "against any person in violation of any permit, standard, regulation, condition, requirement, prohibition, or order."¹² As discussed below, federal and lower court decisions construing identical language under the Pennsylvania Clean Streams Law (CSL) unanimously found that such language did not create a private right-of-action for damages. If the legislature had intended to create a right-of-action for damages, it was capable of doing so clearly. This is evidenced by the fact that the citizen suit in the Pennsylvania Stormwater Management Act¹³ expressly authorized actions for damages when it used the term "damages." Regardless of the soundness of the Pennsylvania Supreme Court's reasoning, unless the legislature acts, which now seems unlikely, the Centolanza decision will govern future Tank Act actions, and its reasoning will likely apply to the citizen suit provisions contained in the majority of Pennsylvania's environmental statutes.

The Significance of Centolanza: Its Extension to Citizen Suit Provisions Under Other Pennsylvania Environmental Laws

The significance of the Centolanza decision is evident on consideration of the characteristics of the many citizen suit provisions contained in virtually all of Pennsylvania's environmental laws. It appears that Centolanza's reasoning would support private rights-of-action for damages under those statutes.

[28 ELR 10655]

The Tank Act's citizen suit provision is similar, if not identical, to the citizen suit provisions contained in virtually all of Pennsylvania's environmental statutes that have citizen suit provisions. Many of these laws, including the major environmental statutes governing air, groundwater, surface water, drinking water, and mining, possess the same "compel compliance" language construed in Centolanza.¹⁴ Section 15 of the Pennsylvania Storm Water Management Act¹⁵ differs from other citizen suit provisions in that it expressly authorizes suits for property damage. Other citizen suit provisions, which do not expressly authorize damages or use the term "compel compliance," are similar enough to the Tank Act provision to allow them to be construed in the same manner as the Pennsylvania Supreme Court construed the Tank Act provision.¹⁶

On their face, these other environmental citizen suit provisions (other than the Storm Water Management Act) authorize relief to "abate violations" or to "compel compliance" and, thus, appear to authorize injunctive relief only. For that reason, before Centolanza, cases construing the CSL citizen suit provision uniformly held that the provision would not support an action seeking damages, but only an action seeking injunctive relief.¹⁷

The Pennsylvania Supreme Court's reasoning in Centolanza would now appear to support the proposition that all of these other environmental citizen suit provisions would authorize a private action seeking property damages, including remedial costs and diminution of value. All environmental laws are remedial laws that under the reasoning in Centolanza, must be broadly construed. Pennsylvania's environmental laws routinely indicate that violations of the laws and regulations constitute nuisances. Finally, virtually all of Pennsylvania's environmental laws are supported by findings and concerns similar or even identical to those that the Pennsylvania Supreme Court found persuasive in construing the Centolanza citizen suit provision. On the other hand, as evidenced by the variously worded citizen suit provisions, the differences in language from statute to statute give defendants fodder for arguments that Centolanza should not be extended to each environmental statute.

It is still too early to determine whether the courts will expand the citizen suit provisions contained in other Pennsylvania environmental statutes to include claims for damages. The case law to date is decidedly mixed. In the only case to date that has squarely addressed the issue, the Middle District of Pennsylvania in Andritz Sprout-Bauer, Inc. v. Beazer East, Inc. (Andritz I)¹⁸ has gone both ways on the extension of Centolanza to other statutes. In Andritz I, Judge McClure, citing Centolanza, initially held that under the citizen suit provision of the CSL,¹⁹ a current property owner could bring an action for damages against prior owners, and, therefore, the court denied a motion to dismiss the CSL claim. However, Judge McClure subsequently reversed himself in a published opinion that held that "private citizens may bring an action to compel compliance if the PADEP does not do so, but they may not bring a private action to recover cleanup costs."²⁰

In Andritz I, the PADEP ordered the plaintiff to remediate soil and groundwater contamination arising from industrial operations and tank leakage. The plaintiff sued the prior owners of the property, seeking recovery of damages for past and future investigation and remediation costs. In the initial opinion, Judge McClure distinguished away prior decisions that held that there was no private right-of-action for damages under the CSL on the basis that "the court ruled without the benefit of the Pennsylvania Superior Court's decision in Centolanza, which was affirmed on other grounds by the Pennsylvania Supreme Court."²¹ Judge McClure also relied on an unpublished decision of the Eastern District of Pennsylvania, Circuit City Stores, Inc. v. Citgo Petroleum Corp.,²² noting the following:

Citing the Pennsylvania Superior Court ruling in Centolanza as conclusive authority on this point, the court held that Circuit City could assert a right of recovery against the prior owners under the Pennsylvania Storage Tank and Spill Prevention Act (PaSTSPA) [sic — apparently meaning CSL].²³

Therefore, Judge McClure simultaneously denied a motion to dismiss the Tank Act claim.

In the second published opinion, Judge McClure held that the first opinion had misinterpreted the Circuit City Stores court's award of costs as an award of monetary damages under the CSL. With virtually no analysis, the court abandoned its application of Centolanza to provide a private cause-of-action for damages under the CSL citizen suit provision and decided to follow the pre-Centolanza decision which had held that the CSL did not provide a private cause-of-action [28 ELR 10656] for damages. Andritz II's analysis of the issue was limited to the statement that the court was no longer persuaded that Centolanza's recognition of a private cause-of-action under the PaSTSPA was indicative of private right-of-action under the CSL.²⁴

The other cases mirror the ambiguity of both Andritz decisions. In Circuit City Stores, where a current landowner sued past owners and operators seeking to recover response costs incurred from cleaning up contamination, the court denied a defendant's motion for summary judgment on the plaintiff's CSL citizen suit claim.²⁵ The court noted that the defendant had "cite[d] cases that provide that the Clean Streams Law does not provide for damages," but found that argument to be "without merit" because the claim was "based on Pa. Stat. Ann. tit. 35, § 691.601(c), which permits a person being adversely affected to commence a civil action to compel compliance with the Clean Streams Law and to recover costs." According to plaintiff's counsel in this action, the language appears to support the proposition that damages may be sought under the CSL. Thus, Andritz II correctly concluded that Circuit City Stores ought not to have been interpreted to have found that the CSL citizen suit provision provides a private right-of-action for damages. Circuit City Stores is silent on that issue.

In Michael v. Gettysburg Foundry Specialties Co.,²⁶ the court denied a preliminary objection, which is equivalent to a motion to dismiss in Pennsylvania procedure, seeking dismissal of a CSL claim seeking damages for groundwater contamination. The court referred to the fact that the CSL declared water pollution a "public nuisance." The court further found that plaintiffs hadstanding, noting that the Tank Act "specifically provides for private causes of action," and "[t]he trend in interpreting other legislation is to allow private actions."²⁷ In support of this statement, the court cited Centolanza; another decision of the Pennsylvania Superior Court,²⁸ which found that a private right-of-action for response costs could be brought under the Pennsylvania Hazardous Sites Cleanup Act (HSCA);²⁹ and a section of the CSL that merely provides that existing rights are preserved and unaffected by the CSL. However, the court did not cite the CSL citizen suit provision. Thus, it is unclear whether this case directly construed the CSL citizen suit provision.

In Wagner v. Anzon, Inc.,³⁰ a case, which might be cited as representing a contrary trend of not extending Centolanza, the Pennsylvania Superior Court affirmed the Philadelphia Court of Common Pleas' refusal to find negligence per se in an action for damages arising from lead emissions that violated the city of Philadelphia's Air Management Code.³¹ Citing the Superior Court's decision in Centolanza, the court reasoned that the absence of a citizen suit provision in the Air Management Code suggested an intent not to create liability for damages. Although the city's Air Management Code does not include a citizen suit provision, the Pennsylvania Air Pollution Control Act does include a citizen suit provision under which the Philadelphia Air Management Code could be enforced.³² Evidently, however, the citizen suit provision of the state law was not presented to the court in Wagner. The Wagner decision, therefore, cannot be read to indicate a contrary trend, but instead further suggests that the presence of a citizen suit provision is key to a finding of a private right-of-action for damages.

Expansion of the Damage Remedy Under HSCA in Redland Soccer Club

The Pennsylvania Supreme Court's more recent decision in Redland Soccer Club³³ could readily be interpreted to represent a far narrower decision than Centolanza. Simply, Redland Soccer Club could be read to stand for the proposition that a medical monitoring trust fund constitutes response costs that may be recovered in a private cost recovery action under HSCA, the Pennsylvania state-law counterpart to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

However, the decision supports a far broader reading in at least three senses. First, Redland Soccer Club appears to confirm that Centolanza's holding will be extended to other citizen suit provisions that use the "compel compliance" language found in both the Tank Act and HSCA. Second, Redland Soccer Club confirms that in damage actions brought under a citizen suit provision, a plaintiff is entitled to obtain attorneys fees. This interpretation provides a broader remedy than is available under the CERCLA rule enunciated by the Supreme Court in Key Tronic Corp. v. United States.³⁴ Third, Redland Soccer Club could be stretched to support a finding that such citizen suit provisions [28 ELR 10657] support private rights-of-action for personal injury as well as property damages.

In Redland Soccer Club, the Pennsylvania Supreme Court held that the citizen suit provision of HSCA would support a private cause-of-action seeking the establishment of a medical monitoring trust fund for the plaintiffs, who allegedly had been exposed to hazardous substances disposed of by the defendant.³⁵ The plaintiffs had brought their action under HSCA § 1115(b)'s³⁶ citizen suit provision and HSCA § 702(a),³⁷ which, like CERCLA § 107,³⁸ creates liability for releases of hazardous substances. Finding, further, that the plaintiffs were entitled to obtain attorneys fees under the HSCA citizen suit provision, the Pennsylvania Supreme Court stated that HSCA § 1115:

is the only section of the HSCA that authorizes citizen suits, and thus, it is the only section under which the Redland Plaintiffs could have brought suit. Section 6020.702 specifies various categories of relief for which a defendant may be liable under the HSCA. A plaintiff cannot bring a citizen suit under § 6020.702.³⁹

Although not citing Centolanza, the court thus clearly indicated that the HSCA citizen suit could be used to obtain damages.⁴⁰

The Pennsylvania Supreme Court clarified that, while a plaintiff could be entitled to relief in the form of the creation of a medical monitoring trust:

A claim for a medical monitoring trust is significantly different from a claim for a lump sum award of damages…. However, because the Redland Plaintiffs are seeking only a medical monitoring trust fund, we offer no opinion concerning whether lump sum damages are recoverable under the HSCA.⁴¹

While one might argue that a medical monitoring trust fund would constitute a form of injunctive relief, the court's reasoning suggested that it treated it as a form of damages, with special restrictions.

To the extent Redland Soccer Club can be read to hold that damages for personal injury may be obtained under the HSCA citizen suit provision, it also could be argued that the decision supports a further extension of the opportunities for plaintiffs under Centolanza. Certainly, environmental statutes are intended to protect human health as well as the environment. If damages for diminution in property damage can be obtained, it can be argued that damages for injuries to health caused by environmental pollution should equally be recoverable.

Moreover, given its express reliance upon the citizen suit provision of HSCA, Redland Soccer Club can be cited in further support of the proposition that the "compel compliance" language contained both in the Tank Act and the HSCA citizen suit provision should be extended to cover all other environmental citizen suit provisions containing that language. The majority of other courts that considered private rights-of-action under HSCA before Redland Soccer Club found that damages, in the form of response costs, could be obtained under HSCA. In Smith v. Weaver,⁴² the only Pennsylvania state appellate court decision to address the issue, the Pennsylvania Superior Court held that there was a private right-of-action to seek response costs under HSCA, but the court did not cite the HSCA citizen suit provision. The majority of federal courts have held similarly. In Toole v. Gould, Inc.,⁴³ the court cited the HSCA citizen suit provision as indicative of legislative intent to establish a private right-of-action under other sections of HSCA. Thus, while the previous case law on a HSCA private right-of-action could be understood as the application of CERCLA § 107 case law to the parallel provisions of HSCA, Redland Soccer Club makes such a construction difficult, if not impossible, and supports a broader reading of Centolanza.

Significance of Expansion of Citizen Suit Remedies Under Centolanza and Redland Soccer Club

Centolanza and Redland Soccer Club will significantly strengthen the hands of plaintiffs in environmental litigation. At a minimum, the two cases significantly expand the scope of relief available under the two state environmental statutes most often at issue in litigation involving site contamination, HSCA and the Tank Act. As discussed below, this expansion will provide plaintiffs with the many substantive and procedural advantages available under the citizen suit provisions of those statutes.

Further, to the extent that the holdings in Centolanza and Redland Soccer Club are extended to the citizen suit provisions of other environmental laws, the decisions would vastly expand the scope of activities that will create liability for damages and make it easier to prove liability. Virtually any violation of the various environmental laws, their implementing regulations, and permits and plans promulgated under those laws would support a cause-of-action under their citizen suit provisions. Each of the laws declare that some or all violations of their provisions or regulations constitute public nuisances. By way of example, a variety of provisions of the CSL generally make all violations of the CSL public nuisances, and, specifically, most activities causing or allowing pollution of the waters of the common-wealth are public nuisances.⁴⁴

Pennsylvania's environmental laws will often define a very broad category of conduct as actionable. This will simplify proof of actionable conduct and may, to a certain extent, simplify proof of causation. By way of example, the [28 ELR 10658] CSL provides that "allow[ing] or permit[ting] to be discharged from property owned or occupied by such person … any substance of any kind or character resulting in pollution" is unlawful and constitutes a public nuisance.⁴⁵ Thus, the existence of soil contamination on property leading to groundwater contamination could support a citizen suit seeking damages based on such a condition. By way of further example, HSCA makes the release of any hazardous substance as well as any violation of HSCA a nuisance.⁴⁶ Presumably, the same limited elements that would support a cause-of-action for response costs under HSCA⁴⁷ would also support a cause-of-action for property damages and result in the imposition of joint and several liability.

Of course, a plaintiff will still need to prove that the violation of law caused the damages that are the subject of the complaint. Thus, for example, in Gravlin v. Fredavid Builders & Developers,⁴⁸ the Pennsylvania Superior Court held that a violation of CSL regulations regarding construction of a sewer grate would not support a jury instruction of negligence per se in an action for damages brought by a construction worker who tripped over the grate, because there must be a showing of a connection between the harm to be prevented by the statute and the type of harm suffered by plaintiff. Such an element of proximate causation would, necessarily, continue to apply in citizen suit damage actions.

Plaintiffs' actions will also be simplified because most of the state environmental laws with citizen suit provisions also require self-monitoring and reporting which can prove a violation of the law and may support summary judgment. This will particularly be the case with the CSL and the Pennsylvania Air Pollution Control Act, where self-monitoring to confirm compliance with federal permit emissions limits is required to assure compliance with the federal programs implemented under those laws.

Moreover, many, if not most, of the Pennsylvania environmental statutes containing citizen suit provisions also contain presumptions of liability similar to the Tank Act presumption at issue in Centolanza.⁴⁹ The holding under Centolanza regarding use of presumptions is equally likely to be applied to these other environmental statutes. These presumptions will further simplify a plaintiff's proof of causation.

While a listing of the presumptions contained in Pennsylvania's environmental statutes is beyond the scope of this article, the following presumptions contained in other Pennsylvania environmental statutes will readily exemplify their likely utility to plaintiffs. HSCA contains a presumption that a person who has caused or allows a release is liable for "all damages, contamination, or pollution within 2,500 feet of the perimeter of the area where the release has occurred."⁵⁰ A similarly broad presumption is contained in the Pennsylvania Municipal Waste Planning, Recycling, and Waste Reduction Act (commonly known as Act 101). Act 101 contains a presumption that a municipal waste landfill has caused any groundwater pollution within one-quarter mile of the landfill's perimeter.⁵¹

The presumption contained in the Tank Act has already proven to be a powerful weapon. In Bell Atlantic-Pennsylvania, Inc. v. Maxi Mart Corp.,⁵² the Allegheny County Court of Common Pleas granted summary judgment based solely on that presumption. The court found that imposition of damages was warranted "based on the smallest contribution to the damages" and that the presumption shifted the burden of proof to defendants to show their lack of contribution to contamination on the basis of clear and convincing evidence. The presumptions contained in other environmental statutes are likely to prove equally powerful weapons.

The citizen suit provisions also authorize additional types of relief that will make the causes-of-action for damages more attractive to plaintiffs and — perhaps more importantly — their attorneys. First, all of the environmental citizen suit provisions authorize the award of attorneys fees, as well as other costs. The Pennsylvania Supreme Court's holding in Redland Soccer Club resolves any doubt that these fee-shifting provisions will be available even to plaintiffs seeking damages. This will have the effect of making claims with only marginal damages attractive to a plaintiff. Second, all of the citizen suit provisions authorize injunctive relief. Third, some citizen suit provisions, most notably the Pennsylvania Air Pollution Control Act,⁵³ authorize private parties to seek the imposition of civil penalties for violations. Although these penalties are paid to the Clean Air Fund, experience under the federal citizen suit provisions containing similar penalty provisions has shown that the possible imposition of penalties provides plaintiffs with a powerful bargaining chip. This bargaining chip could prove particularly useful in cases where plaintiffs seek damages, which, unlike penalties, are tax deductible.

Giving plaintiffs the right to obtain damages pursuant to environmental citizen suit provisions will also provide plaintiffs with a boon because the citizen suit provisions may have no statute of limitations or a much longer limitations period than would apply to a common-law cause-of-action, such as a claim for trespass or nuisance. Thus, in Butzville Corp. v. Gulf Oil Corp. of Pennsylvania,⁵⁴ the Lancaster County Court of Common Pleas held that, in the absence of a specific statute of limitations for damage actions under the Tank Act, the 20-year statute of limitations applicable to the imposition of penalties should be applied. Other environmental statutes include similarly lengthy statute of limitations. For example, the statute of limitations for cost recovery under HSCA is 20 years,⁵⁵ providing a far longer limitations period than would be available under either the common law or even CERCLA.

On the other hand, defendants will have ample defenses available. Plaintiffs will still need to prove violations of the [28 ELR 10659] environmental laws.⁵⁶ Plaintiffs may also be required to comply with the procedural requirements of citizen suit provisions, such as 60 days' prior notice of intent to file suit.⁵⁷ Moreover, the environmental statutes that have not been construed include clauses and provisions different from those of the Tank Act and HSCA. Such variances may allow good-faith arguments against construing those statutes to provide private rights-of-action for damages.

One major unresolved question arises from the interplay between these judicially created causes-of-action for damages and the state's brownfields law, the Pennsylvania Land Recycling and Environmental Remediation Standards Act (Act 2).⁵⁸ Act 2 provides that if a person has conducted remediation in accordance with the standards established under Act 2, neither that person nor any subsequent owner of the remediated land will be liable under any Pennsylvania environmental statute for remediation of the identified contamination.⁵⁹ If Act 2 will serve as a defense to actions for damages, the judicially created remedies in Centolanza and Redland Soccer Club will reinforce Act 2 by providing a further incentive to remediate contaminated properties voluntarily. On the other hand, Act 2 also preserves common-law causes-of-action for damages.⁶⁰ If a plaintiff succeeds in convincing the courts that claims for damages incurred before the remediation should be the subject of this savings clause, damages actions could seriously undermine the Act 2 incentives intended to encourage reuse of contaminated properties.

Conclusion

In the tradition of the common law, the Pennsylvania Supreme Court created new judicial remedies under statutory causes-of-action. These remedies have the potential of supplementing environmental enforcement and supporting the goals of the environmental laws. However, because these new remedies were not contemplated by the statutes at issue, their implementation will likely generate extensive litigation as the many issues left unresolved by the Pennsylvania Supreme Court and not addressed in the legislation are worked out. The decisions also pose the threat of undermining other legislative priorities, such as the remediation and reuse of old industrial, contaminated sites. The questions left unanswered by the Pennsylvania Supreme Court in Centolanza and Redland Soccer Club will likely only be answered by future litigation.

1. 658 A.2d 336 (Pa. 1995), reh'g denied, 1995 Pa. LEXIS 515 (Pa. 1995).

2. 696 A.2d 137 (Pa. 1997).

3. 516 U.S. 479, 26 ELR 20820 (1996) (holding that the citizen suit provision of the federal Resource Conservation and Recovery Act, 42 U.S.C. § 6972, ELR STAT. RCRA § 7002, does not authorize a private right-of-action to obtain damages).

4. PA. STAT. ANN. tit. 35, § 6021.1305 (West 1993).

5. Id. § 6021.1305(c).

6. See id. § 6021.1305(c)-(f).

7. Id. § 6021.1311(a).

8. Centolanza v. Lehigh Valley Dairies, Inc., 658 A.2d 336, 340 (Pa. 1995).

9. One court of common pleas, interpreting the Pennsylvania Superior Court opinion without the benefit of the Pennsylvania Supreme Court's reasoning, noted that the citizen suit provision authorized only actions "to compel compliance with the act or rules promulgated pursuant thereto" and "does not by its terms, permit recovery of money damages." Kulp v. Hrivnak Motor Co., No. 8706911 (Pa. C.P. Chester Apr. 5, 1994). Kulp, nevertheless, found that the Tank Act's declaration that violations of the Tank Act constituted a nuisance was sufficient to support an action for damages. The Kulp approach would distinguish decisions under Pennsylvania law from contrary decisions, such as Meghrig, under federal law where violations of the statute are not expressly declared to be nuisances. However, the Kulp approach runs contrary to well-established Pennsylvania precedent finding that such declarations of nuisance, which appear in virtually every Pennsylvania environmental statute, do not create a private right-of-action for damages. See Fleck v. Timmons, 543 A.2d 148 (Pa. Super. Ct. 1988) (construing the Pennsylvania Solid Waste Management Act, PA. STAT. ANN. tit. 35, §§ 6018.101-.1003 (West 1997), which has no citizen suit provision).

10. 42 U.S.C. § 6972, ELR STAT. RCRA § 7002.

11. Id. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B).

12. Id. § 6972(a)(1)(A), ELR STAT. RCRA § 7002(a)(1)(A).

13. PA. STAT. ANN. tit. 32, § 680.15 (West 1997).

14. See Pennsylvania Clean Streams Law (CSL) § 601, PA. STAT. ANN. tit. 35, § 691.601 (West 1993); Pennsylvania Safe Drinking Water Act § 13(b), PA. STAT. ANN. tit. 35, § 721.13(b) (West 1993); Pennsylvania Plumbing System Lead Ban and Notification Act § 13(g), PA. STAT. ANN. tit. 35, § 723.13(g) (West 1993); Pennsylvania Air Pollution Control Act § 13.6, PA. STAT. ANN. tit. 35, § 4013.6 (West 1993); Pennsylvania Coal Refuse Disposal Control Act § 4013.6, PA. STAT. ANN. tit. 52, § 30.3 (West 1998); Pennsylvania Surface Mining Conservation and Reclamation Act § 18c, PA. STAT. ANN. tit. 52, § 1396.18c (West 1998); the Pennsylvania Bituminous Mine Subsidence and Land Conservation Act § 13, PA. STAT. ANN. tit. 52, § 1406.13 (West 1998); and Pennsylvania Noncoal Surface Mining Conservation and Reclamation Act § 20, PA. STAT. ANN. tit. 52, § 3320 (West 1998).

15. PA. STAT. ANN. tit. 32, § 680.15 (West 1997).

16. See Pennsylvania Flood Plain Management Act § 502(b), PA. STAT. ANN. tit. 32, § 679.502(b) (West 1997) ("Suits to restrain, prevent, or abate violation of this act or of any flood plain management regulations may be instituted in equity or at law by … any aggrieved person"); Pennsylvania Hazardous Sites Cleanup Act (HSCA) § 1115, PA. STAT. ANN. tit. 35, § 6020.1115 (West 1993) (allowing a plaintiff to "file a civil action … to prevent or abate a violation of this act"); Pennsylvania Low-Level Radioactive Waste Disposal Act § 508, PA. STAT. ANN. tit. 35, § 7130.508 (West 1993) (allowing a plaintiff to "commence a civil action on its own behalf against any person who is alleged to be in violation of this act"); and Pennsylvania Municipal Waste Planning, Recycling, and Waste Reduction Act § 1711, PA. STAT. ANN. tit. 53, § 4000.1711 (West 1994) (allowing a plaintiff to "commence a civil action on its own behalf against any person who is alleged to be in violation of this act").

17. See Pennsylvania Real Estate Inv. Trust v. SPS Technologies, Inc., No. 94-CV-3154, 1995 WL 687003 at *10 (E.D. Pa. Nov. 20, 1995); Lutz v. Chromatex, Inc., 718 F. Supp. 413, 428-29, 19 ELR 21368, 21375-76 (M.D. Pa. 1989); City of Philadelphia v. Stepan Chem. Co., 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982); reconsideration denied, 14 ELR 20007 (E.D. Pa. 1983); Luckenbaugh v. Shearer, 37 Pa. D. & C.3d 588, 590-92 (Pa. C.P. York 1984).

18. No. 4:CV-95-1182 (M.D. Pa. May 1, 1997), slip. op. at 23-25.

19. PA. STAT. ANN. tit. 35, § 691.601 (West 1993).

20. Andritz Sprout-Bauer, Inc. v. Beazer E., Inc. (Andritz II), No. 4:CV-95-1182, 1998 WL 400379 (M.D. Pa. 1998).

21. Andritz I, slip op. at 25.

22. No. 92-7394, 1995 WL 393721 at *3 (E.D. Pa. June 29, 1995).

23. Andritz I, slip. op. at 24. As noted below, Circuit City Stores actually did not address this issue.

24. In a confused opinion designated "not for publication," a panel of the Third Circuit further muddies the waters. Joshua Hill, Inc. v. Whitemarsh Township Auth., 46 ERC 1883 (3d Cir. 1998). Joshua Hill related to the application of the requirements of the CSL and the HSCA citizen suit provision that plaintiffs provide the common-wealth and defendants prior notice or their intent to file suit. Completely misreading Redland Soccer Club, as discussed infra, the court found that HSCA provided two remedies, one for private cost recovery and the other the citizen suit, and reversed the district court's decision dismissing a HSCA private cost recovery action for failure to provide pre-suit notification. However, the court affirmed the district court's dismissal of a CSL count for failure to provide pre-suit notification. Citing the Centolanza decisions, the court reasoned that the CSL does not provide a separate cause-of-action for damages outside of the citizen suit and affirmed the dismissal because the only private cause-of-action available was the citizen suit provision which required prior notice. Thus, the decision does not appear to address the question of whether or not the damage remedy is available under the citizen suit provision. The court's clear misreading of Redlands Soccer Club suggests that its reasoning should not be deemed persuasive and its designation as "not for publication" means that it lacks precedential value. Internal Operating Procedures of the United States Court of Appeals for the Third Circuit, §§ 5.2, 5.3 (West 1997).

25. Circuit City Stores, 1995 WL 393721 at *3.

26. 30 Pa. D. & C.4th 31 (Pa. C.P. Adams 1995).

27. Id. at 38.

28. Smith v. Weaver, 665 A.2d 1215 (Pa. Super. Ct. 1995).

29. PA. STAT. ANN. tit. 35, §§ 6020.101-.1305 (West 1997).

30. 684 A.2d 570 (Pa. Super. Ct. 1996), appeal denied, 700 A.2d 443 (Pa. 1997).

31. PADEP has delegated to the city of Philadelphia the authority to administer and enforce the air pollution control requirements of the Pennsylvania Air Pollution Control Act and the Pennsylvania State Implementation Plan. The city exercises that authority by way of a city ordinance known as the Philadelphia Air Management Code and the regulations promulgated thereunder.

32. See PA. STAT. ANN. tit. 35, § 4013.6 (West 1993).

33. Redland Soccer Club, Inc. v. Department of the Army, 696 A.2d 137 (Pa. 1997).

34. 511 U.S. 809, 24 ELR 20955 (1994). The Pennsylvania Supreme Court reached a decision on this issue that directly contradicted the decision reached by the federal district court in companion federal litigation. See Redland Soccer Club, Inc. v. United States, 801 F. Supp. 1432, 1437 (M.D. Pa. 1992).

35. Redland Soccer Club, 696 A.2d at 137.

36. PA. STAT. ANN. tit. 35, § 6020.1115(b) (West 1993).

37. Id. § 6020.702(a).

38. 42 U.S.C. § 9607, ELR STAT. CERCLA § 107.

39. Redland Soccer Club, 696 A.2d at 147.

40. A panel of the Third Circuit, in the unpublished decision in Joshua Hill, Inc. v. Whitemarsh Township Auth., 46 ERC 1883 (3d Cir. 1998), misread Redland Soccer Club to find that HSCA provided both a private right-of-action for cost recovery presumably under § 702, and a different citizen suit action under § 1115, stating "Redland Soccer Club states that a plaintiff bringing an HSCA citizen suit must do so pursuant to § 1115." 46 ERC at 1887. While it is true that the language of Redland Soccer Club did not include this tautology, when the language is read in context, it is clear that the Pennsylvania Supreme Court held that HSCA § 702 did not authorize a private right-of-action for damages and that the liability created under § 702 could be asserted only by means of the right-of-action created by § 1115. It is unclear, therefore, why the panel in Joshua Hill believed that HSCA provided a private right-of-action for damages outside of the citizen suit provision.

41. Redland Soccer Club, 696 A.2d at 142 n.6.

42. 665 A.2d 1215 (Pa. Super. Ct. 1995).

43. 764 F. Supp. 985, 987 (M.D. Pa. 1991).

44. See PA. STAT. ANN. tit. 35, §§ 691.3, .202, .207, .209, .307, .315, .401, .503 (West 1993).

45. Id. § 691.401.

46. Id. § 6020.1101.

47. The elements of a cause-of-action under HSCA are very similar to those under CERCLA, but HSCA does not include any requirements relating to consistency with the national contingency plan. See Commonwealth Dep't of Envtl. Resources v. Bryner, 613 A.2d 43 (Pa. Commw. Ct. 1992).

48. 677 A.2d 1235 (Pa. Super. Ct.), appeal denied, 687 A.2d 378 (Pa. 1996).

49. See PA. STAT. ANN. tit. 35, § 6021.1311(a) (West 1993).

50. Id. § 6020.1109.

51. PA. STAT. ANN. tit. 53, § 4000.1104(c) (West 1994).

52. No. GD 94-10718, 16 Pa. J. Envtl. Litig. 25 (Pa. C.P. Allegheny June 17, 1996).

53. PA. STAT. ANN. tit. 35, § 4013.6(c) (West 1993).

54. PICS Case No. 95-3020 (Pa. C.P. Lancaster Jan. 26, 1995).

55. PA. STAT. ANN. tit. 35, § 6020.1114 (West 1993).

56. See Raub v. Westinghouse Elec. Corp., March Term 1995 No. 1378, 18 Pa. J. Envtl. Litig. 15 (Pa. C.P. Philadelphia June 26, 1997).

57. Pittsburgh Penn Center Corp. v. Sears Roebuck & Co., No. GD 90-20915 (Pa. C.P. Allegheny Oct. 13, 1995); but see Smith v. Weaver, 665 A.2d 1215 (Pa. Super. Ct. 1995) (finding notice not required where plaintiff cleaned up tank pursuant to DEP order).

58. PA. STAT. ANN. tit. 35, §§ 6026.101-.908 (West 1997).

59. Id. § 6026.501.

60. Id. § 6026.506.