## Facts

- The dispute concerned hazardous-substance contamination at the Malvern TCE Superfund Site in Malvern, Pennsylvania, where Chemclene Corporation processed and stored industrial solvents and wastes from about 1952 to 1992.
- The site was placed on the National Priorities List in 1983; EPA pursued Superfund remedial action beginning in the early 1990s.
- In 1996, EPA notified various entities, including the Simon Entities, that they were potentially responsible parties (PRPs) under CERCLA § 107(a).
- In 1999, a group of PRPs formed the Chemclene Site Defense Group (CSDG) and entered a consent decree with EPA and Pennsylvania DEP to perform site remediation.
- In 2002, CSDG members sued 74 PRPs for contribution under CERCLA § 113(f) and Pennsylvania’s Hazardous Sites Cleanup Act (HSCA); by trial, only Simon Wrecking Co., Simon Resources, and Mid-State Trading remained.
- The Simon Entities transported drums of industrial and hazardous waste from generators to the Chemclene facility and maintained an ongoing business relationship using that site as a destination.
- The estimated total cleanup cost was approximately $23 million; by trial, plaintiffs had obtained about $6.6 million in settlements from other PRPs.
- The case was tried to the court in a bench trial in January 2006.

## Issues

1. Whether the Simon Entities were liable as “transporters” under CERCLA § 107(a)(4) and HSCA because they transported hazardous substances to a disposal/treatment facility “selected by such person.”
2. Whether plaintiffs’ claimed response costs were necessary and consistent with the National Contingency Plan (NCP), making them recoverable in contribution.
3. How to equitably allocate past and future response costs between settling PRPs (plaintiffs) and the Simon Entities under CERCLA § 113(f) and HSCA, including treatment of prior settlements.

## Decision

- The court found the Simon Entities liable as transporters under CERCLA and liable under HSCA on parallel grounds.
- The court concluded that Simon “selected” the Chemclene facility within the meaning of CERCLA § 107(a)(4) based on its course of dealing, disposal-service role, and choice of destination for customers’ wastes.
- The court found plaintiffs’ response costs recoverable because they were incurred pursuant to, and under oversight of, the EPA/DEP consent-decree remedial action, supporting necessity and NCP consistency.
- The court entered a monetary judgment for plaintiffs reflecting Simon’s equitable share of past and future response costs, reduced to account for settlements paid by other PRPs to avoid over-recovery.

## Legal Principles

- A transporter is liable under CERCLA § 107(a)(4) when it accepts hazardous substances for transport to a disposal or treatment facility it “selected”; selection may be shown by an ongoing disposal relationship and choosing the destination facility rather than acting as a passive hauler.
- CERCLA PRP liability is status-based and does not require proof of fault; settling PRPs that incur response costs may pursue contribution under CERCLA § 113(f).
- Response costs are recoverable in contribution when they are necessary and consistent with the NCP; performance under an EPA/DEP-approved remedy with regulatory oversight strongly supports NCP consistency.
- In allocating contribution under CERCLA § 113(f), a court may apply equitable factors including volume, toxicity, timing of disposals, cooperation with regulators, and prior settlements, and may reduce a defendant’s share to reflect settlement credits to prevent overcompensation.
- HSCA supports transporter liability and contribution using standards closely aligned with CERCLA for hazardous-site cleanup costs in Pennsylvania.

## Conclusion

The court held the Simon Entities liable as CERCLA/HSCA transporters because they selected Chemclene as the disposal/treatment destination for hazardous wastes, found the consent-decree cleanup costs necessary and NCP-consistent, and entered a settlement-offset monetary judgment allocating Simon an equitable share of response costs in contribution.


Action Mfg. Co. v. Simon Wrecking Co., 428 F. Supp. 2d 288 (E.D. Pa. 2006)