3rd Circuit Decides That “All Costs” Means “All Costs”

Courts have often noted that CERCLA is not a model of drafting excellence, and that some of the statute’s definitions are simply tautologies, e.g., that an owner means an owner. In Commonwealth of Pennsylvania Dept. of Env. Protection v. Trainer Custom Chemical, decided in 2016, we reported in this space that the district court had provided a unique twist on that definition, holding that the current owner under CERCLA meant the owner at the time response costs were actually incurred. It therefore held that the party holding title at the time of the litigation was not liable for response costs incurred by the PaDEP prior to that owner’s purchase of the property. The district court noted that while CERCLA liability is broad, “strict liability is not limitless.” Not surprisingly, the PaDEP immediately sought an interlocutory appeal.

On October 5, 2018, in PaDEP v. Trainer Custom Chemical, the 3rd Circuit ruled on that appeal, reversing the district court. The decision did turn on the clear meaning of the language of CERCLA, but not the meaning of “owner” – there was no question that the defendant was the current owner. It turned on “all costs.” Stating that Section 107(a) of CERCLA makes the owner of a facility liable for all costs of removal or remedial action, the court observed that “this is a statement of remarkable breadth, but a statute may be broad in scope and still be quite clear….The term ‘all costs’ means just that,” regardless of whether incurred before or after the defendant took ownership. Thus ends another quirky effort to find a way out of the entanglements of Superfund liability.