The U.S. District Court for the Western District of Pennsylvania determined that a potentially responsible party conducting a site cleanup pursuant to both a state court order and an administrative settlement with a state agency that “incurs” remediation costs under CERCLA § 107(a) may not recover the response costs from a site owner or operator. The decision in Trinity Industries, Inc. v. Chicago Bridge and Iron Co., Civil Action No. 08-1709 (W.D. Pa., April 4, 2012), resolved an issue of first impression in the Third Circuit.
For more than 70 years, Chicago Bridge and Iron (CBI) had owned the site at issue and used it for steel manufacturing, including painting and sandblasting. Following an intermediate owner, Trinity purchased the property and, for more than a decade, manufactured railcars there. After the Pennsylvania Office of the Attorney General filed criminal and civil charges against Trinity for violations of environmental laws stemming from the railcar manufacturing, Trinity entered into a consent order and agreement with the Pennsylvania Department of Environmental Protection and was ordered by the Court of Common Pleas of Mercer County to remediate the site in accordance with its terms. The consent order included findings that a release and threatened release of hazardous substances had occurred and that Trinity was a responsible person under Pennsylvania’s Hazardous Sites Cleanup Act (HSCA). According to the cleanup work plan compiled by an environmental consultant, one of the contaminants of concern was lead, which the consultant attributed to paint drying and sand blasting (both activities performed by CBI when it owned the property), among other causes.
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