In re: Joshua Hill, Inc. Joshua Hill, Inc.; Marc A. Zaid v. Whitemarsh Township Authority

PRECEDENTIAL
Filed June 24, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3677
IN RE: JOSHUA HILL, INC.
JOSHUA HILL, INC.;
MARC A. ZAID,
Appellants
v.
WHITEMARSH TOWNSHIP AUTHORITY; WILLIAM J.
CARMINT; GEORGE K. PALMER; RICHARD M. LAM;
CHRISTIAN K. WAGNER, As Members of the Whitemarsh
Township Authority Board; WHITEMARSH TOWNSHIP; R.
BRUCE FERGUSON; MARYELLEN ANTAL; JOHN S.
GABEL; ROBERT WISER; CHUCK PELLEGRINI, In Their
Capacity as Current Members of the Whitemarsh
Township Board of Supervisors.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 96-cv-05648)
District Judge: Louis Charles Bechtle
Argued January 15, 2002
Before: ALITO, ROTH, Circuit Judges, and SCHWARZER,*
District Judge
(Filed: June 24, 2002)
ALBERT G. BIXLER, ESQUIRE
(ARGUED)
Eckert Seamans Cherin & Mellott,
LLC
1515 Market Street, Ninth Floor
Philadelphia, PA 19102
Attorneys for Appellants
Joshua Hill, Inc.; Marc A. Zaid
ANTHONY R. SHERR, ESQUIRE
(ARGUED)
Mayers, Mennies & Sherr, LLP
3031 Walton Road, Building A,
Suite 330
P.O. Box 1547
Blue Bell, PA 19422-0440
Attorneys for Appellees Whitemarsh

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Township Authority; William J.
Carmint; George K. Palmer; Richard
M. Lam; Christian K. Wagner, As
Members of the Whitemarsh
Township Authority Board;
Whitemarsh Township; R. Bruce
Ferguson; Maryellen Antal; John S.
Gabel; Robert Wiser; Chuck
Pellegrini, In Their Capacity as
Current Members of the Whitemarsh
Township Board of Supervisors
_________________________________________________________________
* The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
OPINION OF THE COURT
SCHWARZER, Senior District Judge:
This appeal requires us to determine the meaning and
application of the word "release" in the Pennsylvania
Hazardous Sites Clean-Up Act, 35 P.S. S 6020.101, et seq.
("HSCA" or "the Act"). Marc A. Zaid and Joshua Hill, Inc.
("plaintiffs") appeal from the District Court’s judgment,
rendered after a bench trial, in favor of defendants
Whitemarsh Township, Whitemarsh Authority, and various
Whitemarsh officials (collectively "defendants"). The
judgment denied recovery of past response cost and
declaratory relief to determine future remedial measures
under HSCA. Joshua Hill, Inc. v. Whitemarsh Township
Auth., No. Civ.A. 96-5648, 2000 WL 1470534, at *1 (E.D.
Pa. Oct. 2, 2000) ("DCOp").1 Because this action was
originally filed as an adversary action in the bankruptcy
case of Joshua Hill, Inc., we have jurisdiction under 28
U.S.C. S 1334. Appellate jurisdiction exists under 28 U.S.C.
S 1291.
I. FACTUAL BACKGROUND
The District Court made extensive findings establishing
the following facts, none of which is disputed. Plaintiffs own
a parcel of land consisting of approximately 11.36 acres
located on Joshua Road in Whitemarsh Township ("the
Property"). Zaid purchased the Property from Whitemarsh
in 1987 and subsequently conveyed it to Joshua Hill, Inc.
The Property has not been developed. From the early 1960s
to the early 1970s, Whitemarsh operated the Property as a
landfill. The landfill was unlined and operated pursuant to
the "trench" method by which trenches were excavated,
filled with refuse and covered with soil. It contains
approximately 118,000 tons of waste material. In proximity
to the Property is a sewage treatment plant operated by
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1. All claims other than the HSCA claim were previously dismissed and
the dismissal was affirmed by this court in an unpublished
memorandum, Joshua Hill, Inc. v. Whitemarsh Township Auth., No. 97-
1588, slip op. 1, 151 F.3d 1025 (3d Cir. Apr. 28, 1998).

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3
Whitemarsh as well as an incinerator formerly operated by
Whitemarsh. The incinerator accepted refuse from
Whitemarsh, Cheltenham Township, and some commercial
entities. When the incinerator was operating, Whitemarsh
deposited ash from the incinerator in the landfill. When it
was not operating, waste intended to be incinerated was
deposited directly into the landfill on the Property. During
Whitemarsh’s operation of the landfill, officials from the
Pennsylvania Department of Environmental Resources
("DER") inspected it periodically. DER inspection reports
show disposal of solids, liquids or hazardous wastes
without DER approval. Reports also note that incinerator
residue, sewage plant, pumping station and household
waste were deposited at the landfill. A Whitemarsh
employee familiar with the operation of the landfill
confirmed that the landfill received incinerator ash, sewage
sludge and waste that could not be burned in the
incinerator. Sewage sludge and incinerator ash commonly
contain concentrated levels of metals left over from the
treatment processes. Household and industrial wastes often
contain numerous organic chemicals that can be hazardous
substances. During the period the landfill operated there
was no limit on what substances Whitemarsh residents
could set out for curbside waste pickup.
II. HAZARDOUS SUBSTANCES ON THE PROPERTY
Environmental testing conducted over time disclosed the
presence of various hazardous substances on the Property.
Testing done for National Label Company, owner of an
adjacent property, by Quality Control Laboratories ("QC
Labs"), revealed the presence of arsenic, barium, cadmium,
chromium, lead, silver, acenaphthene, anthracene, 2,4-
dimethylphenol, phenol, toluene, ethylbenzene,
naphthalene and pyrene in samples from the landfill at the
Property. Tests conducted for Whitemarsh by Valley Forge
Laboratories of samples from the landfill revealed the
presence of barium, lead, mercury, anthracene, pyrene,
chrysene, benzo(a)anthracene, benzo(b)fluoranthene,
benzo(k)fluoranthene, benzo(a)pyrene, indeno(1,2,3-
c,d)pyrene and benzo(g,h,i,)perylene.
In 1994, Roy F. Weston, Inc. performed an environmental
assessment. Weston drilled five monitoring wells to assess
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potential groundwater contamination on the Property,
monitoring well No. 1 ("MW-1") being the most upgradient
well and monitoring wells Nos. 2 and 3 ("MW-2" and "MW-
3") being the most downgradient with reference to the
landfill. The Weston testing detected elevated levels of PCE
and low levels of 1,2-diocholoethene, chloroform,
trichloroethene ("TCE"), toluene, ethylbenzene and xylene in
MW-1. These tests also detected elevated levels of lead in
MW-3. Subsequent testing conducted in 1998 by Blazosky

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Associates, Inc. ("BAI") found the presence of volatile
organic compounds ("VOCs") in MW-1 and lead in
monitoring well 4 ("MW-4").
At trial, plaintiffs’ experts testified that the contaminants
found in the groundwater originated from the landfill.
Defendants’ experts testified to the contrary, stating that
materials in the landfill were not impacting the
groundwater under the Property and that the PCE found at
MW-1 could have come from a dry cleaner located some
4000 feet from the Property.
III. THE DISTRICT COURT’S FINDINGS AND
CONCLUSIONS
The District Court correctly held that to make a prima
facie case of liability under HSCA, plaintiffs must establish
that:
(1) defendants are responsible parties;
(2) there has been an actual or threatened "release" of
a hazardous substance from a site;
(3) "response costs" were or will be incurred; and
(4) the response costs were "reasonable and necessary
or appropriate."
DCOp *8; see United States v. Alcan Aluminum Corp., 964
F.2d 252, 258-59 (3d Cir. 1992) (addressing the analogous
provisions of section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 ["CERCLA"]2). It found and concluded that
materials listed as hazardous materials in 40 C.F.R.S 302.4
_________________________________________________________________
2. 42 U.S.C. S 9607.
5
are present in the landfill on the Property;3 that each of the
substances detected in the landfill by QC Labs and in the
groundwater by Weston and BAI are listed materials; that
these substances were probably disposed of, and can be the
by-products of waste disposed of at the landfill; and that,
accordingly, defendants were owners or operators of a site
where a hazardous substance was placed or came to be
located, 35 P.S. S 6020.103, and are "responsible" parties
within the meaning of HSCA. Id. S 6020.701. DCOp *12.
The District Court found, however, that plaintiffs had
failed to establish that hazardous substances are being
"released into the environment" or that there is "a threat of
release." It found, first, that, with the exception of lead and
PCE, the levels of chemicals detected had not been shown
to be above background levels; second, that the detection of
elevated levels of lead is likely the result of laboratory
contamination or mistranscription; and, third, with respect

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to the detection of PCE, if hazardous substances were
leaching from the landfill, other VOCs would have been
discovered. The Court also found persuasive that for
leachate to have migrated to MW-1, it would have had to
flow upgradient; that the downgradient wells did not
indicate the presence of hazardous substances in detectable
quantities or above background levels; and that samples
did not reveal the presence of PCE in the landfill. DCOp
*12-13.
As the District Court put it, "the principal dispute
between the parties is whether the Defendants caused a
‘release’ of hazardous substances from a ‘site.’ " DCOp *10.
The Court rejected plaintiffs’ argument that because
hazardous substances were found in the groundwater
below the Property, there was a "release" of hazardous
substances from the "site." Liability under HSCA, the Court
held, is triggered when a hazardous substance is released
"from" a "site" rather than "at,""in," or "on" the site. It
explained:
_________________________________________________________________
3. Under HSCA, a "hazardous substance" includes "[a]ny element,
compound or material which is . . . defined or designated as a hazardous
substance pursuant to [CERCLA]." 35 P.S.S 6020.103. The elements and
compounds designated as hazardous substances under section 102(a) of
CERCLA are listed at 40 C.F.R. S 302.4.
6
[T]he plaintiff must show that the hazardous substance
is not only present in the "environment" at the site, but
also that the hazardous substance made its initial
entrance into the "groundwater, . . . land surface or
subsurface strata" at some location on that property.
DCOp *10. Having failed to prove that a release or
threatened release occurred, the Court concluded, plaintiffs
are not entitled to relief under HSCA. DCOp *12.
Because the District Court’s findings of fact are not
challenged on this appeal and we review only its legal
conclusions with respect to the interpretation and
application of HSCA, our review is plenary. Buncher Co. v.
Official Comm. of Unsecured Creditors of Genfarm Ltd.
P’ship IV, 229 F.3d 245, 250 (3d Cir. 2000).
IV. RELEASE
HSCA provides that
a person shall be responsible for a release or
threatened release of a hazardous substance from a
site when
(1) The person owns or operates the site:
(i) when a hazardous substance is placed or comes
to be located in or on a site;
(ii) when a hazardous substance is located in or on

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the site but before it is released;
S 6020.701.
The District Court held that plaintiffs had failed to prove
"a Release or Threatened Release From the Landfill Into the
Environment." DCOp *12. We think that the District Court
misconstrued "release." We conclude that the plaintiffs have
fulfilled the requirement of showing a "release from a site"
because placing hazardous materials in an unlined landfill
is in itself a "release." We turn first to the text of the Act.
"Release" is defined to include "dumping or disposal into
the environment." S 6020.103. "Disposal" is further defined
to include "[t]he combustion, . . . deposition, . . . dumping,
. . . or placing of a hazardous substance or contaminant
into the air, water or land in a manner which allows it to
enter the environment." Id. Thus, when section 701 is read
7
in context with the statutory definitions, it takes on broader
scope than the District Court gave it, imposing
responsibility on the owner or operator of a "site" for
"placing a hazardous contaminant . . . into the land in a
manner which allows it to enter into the environment."
"Environment" is defined as "surface water, groundwater,
drinking water supply, land surface or subsurface strata or
ambient air." Id. Dumping hazardous materials into an
unlined landfill constitutes placing such materials into the
land in a manner that allows them to enter the
environment. Indeed, as the District Court recognized, the
site itself is a part of the "environment." DCOp *10. The Act
draws no distinction between the environment at the dump
site and the environment elsewhere on the Property and,
hence, does not require a plaintiff to prove that such
materials actually migrated from the landfill.
The District Court focused narrowly on whether there
had been a "Release . . . From the Landfill Into the
Environment." DCOp *12. In doing so, it failed to take into
account that under the Act’s definition the relevant site
includes not only a landfill, but also an "area where a
contaminant or hazardous substance has been deposited
. . . released, disposed of, placed or otherwise come to be
located." S 6020.103. In other words, the entire Property
constitutes the site. Suppose defendants had dumped
contaminants elsewhere on the Property other than in the
landfill. Under the District Court’s interpretation,
defendants would not be responsible unless plaintiffs
proved that the contaminants they dumped were "released
into the environment" by migrating elsewhere on site or
onto adjoining property. Such an interpretation would
eviscerate the Act.
In requiring plaintiffs to prove that the hazardous
substance "made its initial entrance into the‘groundwater,
. . . land surface or subsurface strata’ at some location on
that property," the District Court relied heavily on the Act’s
use of the word "from," rather than "at," "in," or "on." DCOp

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*10. It reasoned that the Act’s language implied that "the
initial release into the environment of a hazardous
substance found . . . at a particular site have[sic] actually
occurred at that site." Id. This requirement is at odds with
8
the broad sweep of the Act under which a release occurs
when hazardous material is dumped at the landfill in a
manner which allows it to enter the environment, i.e., the
land, water or air. In our view, when the hazardous
materials were dumped at the unlined landfill, they were
dumped in a manner that allowed them to enter the
environment--at the very least, the environment comprising
the landfill. No further proof was required that they
migrated from there. Our conclusion finds further support
in the definition of "release," which includes"the
abandonment or discarding of barrels, containers, vessels
and other receptacles containing a hazardous substance or
contaminant." S 6020.103. If abandonment of barrels
qualifies as a release into the environment, then, surely,
dumping of hazardous materials into a landfill does as well.
The District Court’s literal reading of the word"from" is
thus incompatible with the plain meaning and purpose of
the Act. A more natural reading consistent with the Act’s
text and purpose would find a release "from" the site when
hazardous waste is dumped so as to "allow[ ] it to enter into
the environment" without the need to prove that it actually
migrated from the site. S 6020.103 (defining disposal). This
reading is consistent with language found later in the same
section that provides exceptions from responsibility for an
"owner [who] obtained actual knowledge of the release or
threatened release of a hazardous substance at the site."
S 6020.701(b)(1)(iv) (emphasis added). It is also consistent
with section 701(a)(2) imposing responsibility for a release
when a "person generates . . . a hazardous substance and
arranges . . . for the disposal . . . of the hazardous
substance." Id. This provision plainly equates release with
disposal of hazardous substances by the person who
generated them. As such, it also provides an alternative
basis for imposing liability on defendants as generators of
hazardous waste, because defendants operated a sewage
treatment plant and trash incinerator near the Property
and deposited hazardous waste from the plant and the
incinerator in the landfill.
The District Court’s reasoning is also at odds with the
statutory scheme which imposes both strict and joint and
several liability. Section 6020.1109 creates a presumption
9
that a person who allows a release of a hazardous
substance shall be liable for all contamination within 2500
feet of the perimeter of the area where the release has
occurred. 35 P.S. S 6020.1009. This presumption may be
overcome only by clear and convincing evidence that the

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person charged did not contribute to the contamination.
The District Court’s requirement that plaintiffs
demonstrated that the contaminants on the Property
leached from the landfill effectively disregards and negates
the presumption. Its implicit rejection of the presumption
on the ground that plaintiffs had failed to prove a release is
circular and ignores the broad scope the Act gives to the
term "release." DCOp *10. The District Court’s reasoning is
also at odds with the Act in that it implies that liability may
be precluded because some of the contaminants on the
Property may have come from a source other than the
landfill. In order to impose strict liability for damage, it is
sufficient that a release significantly contributes. 35 P.S.
S 6020.702(a). To the extent that persons other than
defendants may share responsibility for the contamination
on the Property, the Act affords defendants a right to seek
contribution from responsible persons. 35 P.S. S 6020.705.
We conclude that the District Court’s interpretation,
which would immunize persons who dumped hazardous
materials at a landfill unless those materials are shown to
have entered the soil or groundwater at the dump site, is
not supported by the text of the Act, is inconsistent with its
plain meaning, and conflicts with the Act’s stated purpose
to "[p]rotect the public health, safety and welfare . . . from
the short-term and long-term effects of the release of
hazardous substances and contaminants into the
environment." 35 P.S. S 6020.102(12)(vi).
Our conclusion finds support in decisions of various
courts interpreting the analogous provision of CERCLA.4 In
Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir. 1990),
the court, stating "that the definition of release should be
_________________________________________________________________
4. CERCLA imposes liability on an owner or operator of a facility "from
which there is a release, or a threatened release which causes the
incurrence of response costs, of a hazardous substance." 42 U.S.C.
S 9607(a).
10
construed broadly," held that Borden’s actions"met the
release requirement in two ways. First, it did so by
disposing of the (hazardous wastes) on the property.. . .
Second, the gas emanating from the [waste] constitutes a
release within the meaning of the statute." Id. at 669.
District courts in our Circuit have adopted the same
interpretation. United States v. Barkman, Nos. CIV.A. 96-
395 and CIV.A. 98-1180, 1998 WL 962018, at *8 (E.D. Pa.
Dec. 7, 1998) (rejecting defendants’ arguments that plaintiff
must prove that defendants’ waste was the contamination
source and finding that a release had occurred where
hazardous substances were present at the site and in the
surrounding groundwater and soils); Bethlehem Iron Works,
Inc. v. Lewis Indus., Inc., No. CIV.A. 94-0752, 1996 WL
557592, at *50, *64 (E.D. Pa. Oct. 1, 1996) (applying both
CERCLA and HSCA, finding a release established where the
evidence showed contamination of the groundwater at the

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site and of the soil on the property and dumping of drums
containing hazardous materials on the property such that
plaintiffs were not required to prove who was responsible
for the release at the site); Artesian Water Co. v. New Castle
County, 659 F. Supp. 1269, 1282 (D. Del. 1987) aff’d, 851
F.2d 643 (3d Cir.1988) (stating that plaintiff was not
required to prove that contaminants found near the site
actually flowed from the site); see also HRW Sys., Inc. v.
Washington Gas Light Co., 823 F. Supp. 318, 338 (D. Md.
1993) (suggesting that activity producing hazardous waste
on the site constitutes a release).
Stewman v. Mid-South Wood Prods. of Mena, Inc. , 993
F.2d 646 (8th Cir. 1993), cited by the District Court, is not
to the contrary. Plaintiffs had brought a negligence action
against the defendants, owners of adjoining property on
which hazardous wastes had been deposited, alleging that
hazardous materials had been released from the adjoining
property onto theirs. Id. at 647. Expert testimony at trial
established that the contaminants found on plaintiffs’
properties were naturally occurring substances and that
there had been no release from the defendants’ property.
The district court found as a factual matter that there had
been no release and the court of appeals held that the
finding was not clearly erroneous. Id. at 648. Thus, unlike
the present case, the issue in Stewman was the sufficiency
11
of the proof of causation, not the interpretation of the
statutory term "release."
V. RESPONSE COSTS5
Plaintiffs sought response costs under sections
6020.702(a)(3) and 6020.507(a) of the Act, which provide
that, "[A] responsible person under section 701 or a person
who causes a release . . . of a hazardous substance . . .
shall be liable for the response costs." 35 P.S.
S 6020.507(a); 35 P.S. S 6020.702(a)(3). Because plaintiffs
have established that defendants are responsible persons
who caused a release, they are entitled to relief under the
Act.
Plaintiffs sought to recover costs incurred to investigate,
test for, and assess the presence of hazardous substances
at the Property. These costs cover testing done by Valley
Forge Laboratories ($7,225.00), Kaselaan & DeAngelo
Associates ($2,785.00), and Spires Engineering Company
($4,290.48). In addition, Zaid claimed $26,250 for time
spent in connection with environmental testing and
investigating matters. DCOp *8. The District Court
disallowed these costs because they were incurred"for
potential development [of the Property], not in order to
respond to or remedy a potential environmental hazard."
DCOp. *13.
Response includes "action taken in the event of a release
. . . to study [and] assess . . . the release in order to protect

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the present or future public health, safety or welfare of the
environment," S 6020.103, and response costs include
"reasonable and necessary or appropriate costs,"
S 6020.702(a)(3). The District Court did not find that these
costs were not "reasonable and necessary or appropriate."
Nothing in the Act precludes recovery of otherwise
"reasonable and necessary or appropriate" response costs
simply because they are incurred in connection with plans
for property development. Indeed, it can reasonably be
expected that plans for development will generally provide
the impetus for incurring response costs. District courts
_________________________________________________________________
5. The District Court ruled on plaintiffs’ request for costs "assuming
arguendo that a release occurred from the landfill." DCOp *13.
12
have consistently ruled under the analogous provisions of
CERCLA that plaintiffs who were initially motivated by a
desire to sell the property are not precluded from recovering
otherwise reasonable and necessary response costs. 6
Darbouze v. Chevron Corp., No. CIV.A. 97-2970, 1998 WL
512941, at *7, *10 (E.D. Pa. Aug. 19, 1998) (involving HSCA
and CERCLA); BCW Assocs. Ltd. v. Occidental Chem. Corp.,
No. CIV.A. 86-5947, 1988 WL 102641, at *17 (E.D. Pa.
Sept. 29, 1988); Hatco Corp. v. W.R. Grace & Co ., 849 F.
Supp. 931, 963-64 (D.N.J. 1994); Channel Master Satellite
Sys., Inc. v. JFD Elecs. Corp., 748 F. Supp. 373, 379 n.7
(E.D.N.C. 1990). Moreover, courts have held under the
analogous provisions of CERCLA that the types of activities
undertaken by plaintiffs -- investigating and assessing the
presence of hazardous substances--result in recoverable
response costs. Darbouze, 1998 WL 512941, at *6-*7, *10
(awarding costs for investigating presence of hazardous
substances on property under CERCLA and HSCA); see
Fallowfield Dev. Corp. v. Strunk, No. 89-8644, 1990 U.S.
Dist. LEXIS 4820, at *11 (E.D. Pa. April 23, 1990) (finding
that costs related to testing and evaluating the
contamination constitute recoverable costs under CERCLA);
Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892
(9th Cir. 1986) (holding that no distinction exists between
investigatory costs and on-site clean-up costs for purposes
of recovery); In re Allegheny Int’l Inc., 126 B.R. 919, 926
(W.D. Pa 1991) (finding that expenses incurred for
monitoring a waste site and developing a clean-up plan are
recovery costs); Artesian, 659 F. Supp. at 1288 (adopting
the reasoning of Wickland and allowing recovery of
evaluation and monitoring costs). Accordingly, plaintiffs are
entitled to recover as past response costs payments to
Valley Forge Laboratories, Kaselaan & DeAngelo Associates,
and Spires Engineering Company.
_________________________________________________________________
6. CERCLA provides that where a release of a hazardous substance
causes the incurrence of response costs, the responsible party shall be
liable for "any . . . necessary costs of response incurred by any . . .
person consistent with the national contingency plan." 42 U.S.C.

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S 9607(a)(4)(B). HSCA does not condition liability on costs being
consistent with the national contingency plan.
13
With respect to Zaid’s claimed expenses of $26,250.00 for
his time, they, too, are recoverable as labor costs. Cf. T&E
Industries, Inc. v. Safety Light Corp, 680 F. Supp. 696, 707
(D.N.J. 1988) (holding that CERCLA permits recovery of
labor costs incurred in responding to radiation
containment). However, these expenses are currently
insufficiently documented to be awarded. As the District
Court noted, "there is no evidence supporting this claim
aside from Zaid’s recollection." DCOp *13 n.10. On remand,
further documentation should be provided to the District
Court to substantiate this amount.
The District Court also determined that plaintiffs sought
$10,063.69 in litigation costs7 and denied them. DCOp.
*13. Whether litigation costs are recoverable depends on
the statutory basis for the claim. The Pennsylvania
Supreme Court has held that the citizen suit provisions of
HSCA permit recovery of attorney fees. Section
6020.1115(b) provides that a court in a private citizen suit
"may award litigation costs, including reasonable attorney
and witness fees, to the prevailing . . . party." Redland
Soccer Club, Inc. v. Dep’t of the Army of the United States,
696 A.2d 137, 147 (Pa. 1997). On the prior appeal in this
case, we held that plaintiffs’ complaint set forth a private
cause of action for response costs, and not a citizen suit.
On that basis, we rejected defendants’ contention that
advance notice was required to assert the present claim.
Joshua Hill, Inc., slip op. at 9-10. This case, therefore, is a
private action for response costs under sections 702 and
1101 of HSCA; section 1115(b), which permit recovery of
litigation costs in citizen suits, is inapplicable. While the
Pennsylvania Supreme Court has not squarely addressed
the question whether litigation costs are recoverable under
section 702, we think that Redland Soccer Club strongly
indicates that the court would hold that they are not.
Comparison of the language of the two statutes also
supports that result. Section 702 contains no provision
comparable to section 1115(b), and nothing in the
definition of response in section 103 is susceptible to being
_________________________________________________________________
7. The costs included charges from Blazosky Associates, Inc. ($8,994.26),
Chemspec Analytical Laboratories ($890.00), and Tetrahedron
Consultants, Inc. ($179.43).
14
interpreted as including litigation. Accordingly, we affirm
the District Court’s denial of plaintiffs’ litigation costs.
VI. CONCLUSION
We hold that defendants’ disposal of hazardous

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substances at a landfill constitutes a release into the
environment within the meaning of section 701 of HSCA
and makes them responsible parties, liable to plaintiffs for
response costs pursuant to sections 702 and 507 of the
Act. Plaintiffs are entitled to recover the response costs
previously incurred in the amount of $14,300.48, but not
their litigation costs of $10,063.69. We remand for further
documentation of Mr. Zaid’s requested expenses. Finally,
plaintiffs are entitled to a determination on remand of the
prospective costs of response shown to be reasonable and
necessary or appropriate. Accordingly, we REVERSE the
judgment and REMAND for further proceedings consistent
with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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