COMMENTARY

The environmental laws are full of provisions that could turn into large sources of liability but never do. One of those sleeping liabilities may have stirred last month. Pennsylvania Department of Environmental Protection v. Blue Chip Transportation, No. 153 C.D. 2012 (Pa. Commw. Ct. Dec. 13, 2012), was an action by the state to recover the costs of addressing the Starr tire pile. The Commonwealth Court considered the appeal of Larry Follweiler, a scrap-tire hauler who had brought tires to the Starr site and from whom the DEP now sought a proportionate share of the clean-up costs.

All of this would be pretty familiar stuff if the case had been brought under the federal Superfund statute, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601-75, or the Pennsylvania Hazardous Sites Cleanup Act, Pa. Stat. Ann. tit. 35, §§6020.101 to .1305. However, the government here proceeded under Section 613 of the Solid Waste Management Act (Act 97), Pa. Stat. Ann. tit. 35, §6018.613.

Section 613 of the SWMA establishes a right to governmental cost recovery for expenses incurred by the government to abate a “public nuisance” under the statute.

Section 613 provides:

“Any person or municipality who causes a public nuisance shall be liable for the costs of abatement. The [DEP], any commonwealth agency, or any municipality which undertakes to abate a public nuisance may recover the costs of abatement in an action in equity brought before any court of competent jurisdiction. In addition, the Environmental Hearing Board is hereby given jurisdiction over actions by the department to recover the costs of abatement.”

This section dovetails with Section 601:

“Any violation of any provision of this act, any rule or regulation of the department, any order of the [DEP], or any term or condition of any permit, shall constitute a public nuisance. Any person or municipality committing such a violation shall be liable for the costs of abatement of any pollution and any public nuisance caused by such violation. The Environmental Hearing Board and any court of competent jurisdiction is hereby given jurisdiction over actions to recover the costs of such abatement.”

Reading these two sections together, any state or local governmental entity may sue for the costs of abatement any person that “causes a public nuisance.” The public nuisance need not be a release of any hazardous substance or any action that in fact causes an interference with the use or enjoyment of any property. Instead, it need only be a violation of the SWMA or any of the regulations, permits or orders issued under the SWMA.

In the specific case of Blue Chip Transportation, Follweiler did not operate the Starr site. He admitted that he hauled 330 tons of used tires to Starr, but “contended that the Starrs told him they were going to process the tires into paving material.” He made no inquiry as to what, in fact, the Starrs did with the tires, nor did he inquire into the Starrs’ permit status.

The Starrs had no permit and did not recycle the tires into paving materials. They operated the largest tire pile in Pennsylvania. Because transferring a residual waste (that is, a non-hazardous industrial waste) to a facility that does not have a permit violates the SWMA, the Commonwealth Court held that Follweiler “caused” the tire pile public nuisance within the meaning of Section 613 of the SWMA.

No government seems to have used Section 613 previously, or at least no such litigation has produced a reported case. Research uncovers very few mentions. In Consolidated Rail v. Certain Underwriters at Lloyds, Civil Action No. 84-2609, 1986 U.S. Dist. LEXIS 24579 (E.D. Pa. June 5, 1986), the railroad sought insurance coverage for its costs of complying with an order of the Department of Environmental Resources requiring the railroad to clean up a spill of hazardous material from a railcar. Judge Clifford Scott Green cited Section 613 of the SWMA as authority for the proposition that the railroad had the obligation to clean up. Also, in the widely cited Fleck v. Timmons, 543 A.2d 148 (Pa. Super. Ct. 1988), the Superior Court considered whether the SWMA contained an implied private right of action to compel compliance. The court concluded that no such right of action exists and cited Section 613 in passing as incidental support for the proposition that the legislature vested enforcement authority in the department. The court declined to address the apparent inconsistency of the explicit grant of cost recovery rights to municipalities.

Other than those off-hand references, no cases in the courts or the Environmental Hearing Board seem to involve litigation of the rights of the state or a municipality to recover the costs of stabilizing or cleaning up a waste site. No municipality has sought to recover the costs of cleaning out a lot full of trash, let alone the costs of cleaning or demolishing and removing an abandoned building.

To date, the natural defendants for those types of claims would have been parties with few or hard-to-reach resources. Even if a municipality could establish that abandoning a building at least sometimes (depending on the condition of the structure or the lot) constitutes unpermitted disposal of waste, the owner is probably hard to find or judgment-proof, else the municipality would not have to demolish and remove the abandoned structure.

But that is not necessarily true of parties in Follweiler’s position. If the actions of that third person can be said to “cause” the public nuisance, it can be responsible for the costs of abatement.

Notice that we do not know the constraints on this potential liability. There is no set of regulations governing what does and does not constitute a proper cost of abating a nuisance. For example, does it include just removal or stabilization of waste found at a site, or does it include restoration or rebuilding of the site if done with pubic money? If a private person abates a public nuisance, but part of the money that person uses comes from a public grant, loan or tax abatement, is that amount recoverable? Is there any requirement that the municipality abating the nuisance has the obligation — or the legal power — to spend money abating the particular nuisance? That is, could one township clean up a nuisance in an adjoining township and sue for the costs?

Liability attaches to any activity that violates the SWMA, not just activities that involve chemical hazards. The Starr tire pile was a nuisance, but not because of chemical contamination; it was unattractive and a threat for fires and vermin.

Proper defendants include, as we see from Blue Chip Transportation, parties that thought their waste was to be taken elsewhere or processed somehow. One cannot tell whether the standards are the same as the standards for “arranging for disposal” under the Superfund statute, 42 U.S.C. §9607(a)(3).

Proper plaintiffs under Section 613 include municipalities. A “municipality” under the SWMA is a “city, borough, incorporated town, township or county or any authority created by any of the foregoing.” That is a very large number of entities. Not all of them can be relied on to take a limited view of Section 613, now that it has rolled over in its sleep.

David G. Mandelbaum is national co-chair of the environmental practice group of Greenberg Traurig. His principal office is in Philadelphia. He teaches “Oil and Gas Law,” “Environmental Litigation: Superfund,” and “Global Climate Change” in rotation at Temple University’s Beasley School of Law, and serves as vice chair of the Pennsylvania Statewide Water Resources Committee. He was educated at Harvard College and Harvard Law School.