The Herald, Sharon, Pa.

August 25, 2013

Trinity cleanup sent back to judge

By Joe Pinchot
Herald Staff Writer

GREENVILLE — The ongoing legal battle over who should pay for cleanup of a Greenville-area industrial site is headed back to a federal district court.

The U.S. Court of Appeals for the Third Circuit, Philadelphia, this past week remanded the case to a judge and ordered him to reconsider two decisions.

The case of Trinity Industries Inc. vs. Chicago Bridge and Iron Co. has implications for a separately filed federal suit against Greenlease Holding Co./Ampco-Pittsburgh Corp., and a suit Trinity filed against CBI in Mercer County Common Pleas Court.

Trinity, of Dallas, admitted that it contaminated the 53-acre Hempfield Township property when it built railcars there between 1988 and 2000. The company reached agreements with the state of Pennsylvania to resolve civil and criminal suits and agreed to clean up the mess.

Trinity acknowledged it has undertaken “preliminary investigative work in anticipation of cleanup” but has not begun any “shovel-in-the-ground remediation.”

Trinity sued CBI, which operated a steel manufacturing and fabrication plant at the site from 1911 to 1985, arguing CBI should help pay for the cleanup since it also contaminated the site.

U.S. District Court Judge Gary L. Lancaster, Pittsburgh, dismissed the suit finding the agreement with state agencies did not resolve Trinity’s federal liability, and that Trinity had not incurred cleanup costs under federal law because it did not voluntarily decide to clean up the site, instead paying pursuant to those agreements.

Lancaster also declined to rule on Trinity’s state law issues because he had dismissed the federal law ones, which resulted in Trinity filing the Mercer County suit.

Trinity appealed to the Third Circuit and the appeal attracted friend of the court briefs from the U.S. Department of Justice’s Environment and Natural Resources Division supporting Trinity’s position, and Greenlease – the successor to Greenville Steel Car – supporting CBI’s.

A separate federal judge put the Greenlease case on hold until the Third Circuit ruled.

A three-judge panel of the Third Circuit said Trinity’s case involves two federal laws, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and the Resource Conservation and Recovery Act (RCRA).

“We consider the extent to which a settlement of state liability for environmental contamination affects the contribution scheme provided by CERCLA and whether injunctive relief under RCRA is available when a remediation plan is already under way,” said Judge Michael A. Chagares, writing for the panel.

Both issues are of “first impression” for the court, meaning it has never considered them before, and the resulting opinion is precedential, making it affect any future cases dealing with the same issues.

In the CERCLA matter, Lancaster granted summary judgment to CBI deciding CERCLA allowed a responsible party to seek financial help for cleanups “only for claims brought under CERCLA itself.”

The consent order Trinity signed with state officials deals with its liability under two state laws, but Trinity argued the order entitled it to seek contributions under CERCLA.

“(W)e hold that (CERCLA) does not require resolution of CERCLA liability in particular,” Chagares said. The law “does not state that the ‘response action’ in question must have been initiated pursuant to CERCLA.”

The state Land Recycling and Environmental Remediation Standards Act considers remediation undertaken pursuant to it to be same as remediation undertaken pursuant to CERCLA, Chagares said.

With the CERCLA claim resurrected, the court ordered Lancaster to reconsider his decision not to rule on the state claims.

The court agreed with Lancaster regarding RCRA, noting the U.S. Supreme Court has ruled that RCRA is primarily concerned with reducing the generation of hazardous waste, not the cleanup of waste.