Commonwealth May Be Liable Under HSCA

In a case of first impression, the Pennsylvania Commonwealth Court has ruled that the Commonwealth can be liable as an "owner or operator" under the Hazardous Sites Cleanup Act. In PFG Gas v. DEP, No. 261 M.D. 1999 (Cmwlth Ct. Nov. 4, 1999), Judge James Colins overruled Preliminary Objections filed by DEP in a contribution case brought under HSCA. The Court first found that when the General Assembly included "state governments" within the definition of "persons" against which actions can be filed, it waived sovereign immunity. The Court then found that the Commonwealth was an "owner or operator" under HSCA by following a prior federal court decision analyzing CERCLA.

By the plain language of the act, the Commonwealth is and was an owner or operator of the Broadhead Creek site. We agree with district court in United States v. Union Gas Company, which concluded that the Commonwealth was an owner or operator under CERCLA by virtue of its exclusive control and authority over the development and construction of the flood control project. The Court noted that the Commonwealth owns the streambed of the creek, which is navigable waterway, and it was also an operator of the site by virtue of its having rechanneled the water in 1960, its having repaired the levee in 1980, and its having exercised exclusive control over the area and having inspected it annually since 1980 when it took title to the easement. 35 Env't. Rep. Cas. at 1750. The district court's analysis is consistent with the terms of the HSCA's definitions of "owner or operator" and "responsible person," and we adopt it as our reasoning.