Commonwealth, Department of Environmental Resources v. Bryner

636 A.2d 227, 161 Pa. Commw. 1, 1993 Pa. Commw. LEXIS 809
CourtCommonwealth Court of Pennsylvania
DecidedDecember 17, 1993
StatusPublished
Cited by5 cases

This text of 636 A.2d 227 (Commonwealth, Department of Environmental Resources v. Bryner) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth, Department of Environmental Resources v. Bryner, 636 A.2d 227, 161 Pa. Commw. 1, 1993 Pa. Commw. LEXIS 809 (Pa. Ct. App. 1993).

Opinion

PALLADINO, Judge.

Presently before this court is a motion for entry of response costs filed by the Commonwealth of Pennsylvania, Department of Environmental Resources (DER) seeking to recover expenses which it incurred in the cleanup of an abandoned nitroglycerin manufacturing plant. For the reasons which follow, the motion is granted.

On October 19,1990, DER filed an amended complaint in this court’s original jurisdiction 1 alleging that it incurred response costs when it remediated environmental contamination stemming from the dumping of nitroglycerin and acid waste at a site in Lafayette Township, McKean County, Pennsylvania (site). The complaint further alleged that John Bryner, Sr., John Bryner, Jr., Pringle Powder Company, American Glycerin Company, Inc. and Minard Run Oil Company (Defendants) were the parties responsible for the contamination.

More specifically, DER alleged that from 1925 until the nitroglycerin plant ceased operations in 1953, the Defendants discharged waste acid, along with small amounts of nitroglycerin, into open ditches which emptied into lagoons. In addition, the Defendants dumped leaking drums of nitroglycerin, or-thonitrotoluene and dinitrotoluene into three lagoons, thereby allowing the drums to corrode and release their contents into the lagoons and surrounding sediment.

On or about December 15, 1988 and February 1, 1989, the Defendants were advised by DER to dispose of the leaking drums; however, the Defendants failed to take corrective measures. Because the release or threatened release of the hazardous substances presented a direct risk to the public health, safety and environment, DER undertook a prompt interim cleanup action pursuant to Section 505(b) of the Hazardous Sites Cleanup Act (HSCA).2

Specifically, the cleanup action consisted of the detonation of three lagoons, removal of eight leaking drums of nitric acid, and neutralization of the acid contents of the drums. In addition, DER excavated the contaminated soil surrounding the drums, neutralized the soil, and packed the treated acid and soil in drums which were transported to a permitted disposal facility. DER then filed this action seeking to recover the costs it incurred in performing the prompt interim cleanup of the site.

By prior order of this court, DER’s action was divided into two phases, the first to establish the liability, if any, of each of the Defendants, and the second to determine the amount for which the Defendants are liable. In an opinion and order dated May 20, 1992, this court determined that defendants John Bryner, Sr., American Glycerin Co., Inc., Pringle Powder Company and Minard Run Oil Company are responsible parties under Section 701(a)(1) of the HSCA,3 and are, [229]*229therefore, liable for the environmental contamination of the lagoons at the site. Department of Environmental Resources v. Bryner, 149 Pa. Commonwealth Ct. 59, 613 A.2d 43 (1992). We further determined that John Bryner, Sr., American Glycerin Company, Inc., and Pringle Powder Company are the parties responsible for the leaking drums of nitric acid and the contaminated soil at the site. Id.

In order to resolve the second phase of its action, DER filed the motion for entry of response costs which is presently before this court for disposition. In accordance with Section 702 of the HSCA, persons found to be responsible for the release or threatened release of a hazardous substance are strictly Hable for those damages and costs associated with an interim response which are found to be reasonable in Hght of the information available to DER at the time the interim response action was taken. 35 P.S. § 6020.-702(a)(2). Those costs shall include administrative and legal costs incurred by DER from its initial investigation up to the time that it recovers its costs. 35 P.S. § 6020.507(b). Additionally, DER is entitled to six percent annual interest on the total amount recoverable. 35 P.S. § 6020.702(b).

In response to DER’s unopposed motion for a ruling on this court’s scope of review, the commonwealth court issued an order dated March 11,1991, wherein it stated that our review will be limited to a review of the administrative record and that the scope of review wül be the arbitrary and capricious standard. Therefore, because this court has previously concluded that the Defendants are responsible persons within the meaning of the HSCA, the Defendants will be held Hable for the costs associated with DER’s action unless they estabHsh that DER acted in an arbitrary and capricious manner in incurring those costs.

As an initial matter, the Defendants assert that DER is not entitled to recover any of its response costs because it failed to foHow the statutory requirements of Section 708 of the HSCA, 35 P.S. § 6020.708, before it commenced cleaning up the contamination at the site. Specifically, the Defendants assert that because DER beUeved that more than one person was responsible for the release of the hazardous substances at the site, DER was required to prepare a nonbinding preliminary aHocation of proportionate responsibiHty among aU known responsible persons, to give them written notice thereof, and to invite aH said persons to participate in a dispute resolution procedure to determine each person’s proportionate share of incurred response costs.

DER argues that contrary to the Defendants’ assertions, Section 708 is not relevant to the cleanup action taken by DER in this case. More specificaHy, DER asserts that Section 708 was designed to promote voluntary cleanup of remedial action sites, and that when the provision is read in its entirety, it is clear that an interim response action is exempt from the requirements of Section 708. We agree.

Section 708 provides in pertinent part as foUows:

(a) Mediation. — Whenever the department beHeves that more than one person may be responsible under section 701 for a release or threatened release, the department shaH prepare a nonbinding preliminary allocation of proportionate responsibiHty among aU known persons. The department shaH give written notice of such preliminary aHocation to aU known responsible persons and invite such persons to participate in a dispute resolution procedure selected by the department which may include mediation, arbitration, or similar procedures to determine each person’s proportionate share of the response costs and the appropriate response action to be taken. Within 120 days of the notice, the department and participating persons shaH reach an agreement.... If no agreement has been reached within 120 days, the dispute resolution process shaH terminate ....

35 P.S. § 6020.708(a) (emphasis added).

As noted previously in this opinion, an interim response is one which does not [230]*230exceed twelve months or cost more than $2,000,000. Moreover, a prompt interim response, as was performed by DER in this case, is an expedited cleanup designed to protect the public health or safety or the environment from a release or threatened release of a hazardous substance. Conversely, a remedial response is a long-term response which is more complex, time consuming and costly.

As Section 708 makes clear, the purpose of the mediation process is to determine each person’s proportionate share of responsibility and to determine the appropriate response action to be taken.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Delaware Riverkeeper Network v. PA DEP
Commonwealth Court of Pennsylvania, 2018
Action Manufacturing Co. v. Simon Wrecking Co.
428 F. Supp. 2d 288 (E.D. Pennsylvania, 2006)
Commonwealth v. Delta Chemicals, Inc.
721 A.2d 411 (Commonwealth Court of Pennsylvania, 1998)
Commonwealth, Department of Environmental Protection v. Altoona City Authority
689 A.2d 1009 (Commonwealth Court of Pennsylvania, 1997)
Hill v. Civil Service Commission
27 Pa. D. & C.4th 488 (Delaware County Court of Common Pleas, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
636 A.2d 227, 161 Pa. Commw. 1, 1993 Pa. Commw. LEXIS 809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-department-of-environmental-resources-v-bryner-pacommwct-1993.