PITTSBURGH – Three defendants have been found in default in litigation from the state’s Department of Environmental Protection, which is looking to recoup more than $2 million in costs from a remediation and removal process it undertook and completed to remove hazardous substances from a Rochester warehouse property.
The Commonwealth of Pennsylvania – Department of Environmental Protection first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 25 versus One Brewery Place of Rochester, Harold B. Davidson of Ellwood City, James Randy Davidson of Dover, Fla., M. Ultra Investment Group, Ltd. of Georgetown and Arxada, LLC, of Williamsport.
“This is a civil action for the recovery from defendants of response costs and applicable interest incurred by the Department in responding to the release or threatened release of hazardous substances at or from the former Swimming Pool Doctor site. The Department brings this action pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and pursuant to environmental statutes and common law of the Commonwealth of Pennsylvania, including the Hazardous Sites Cleanup Act, the Solid Waste Management Act, the Clean Streams Law and Section 1917-A of the Administrative Code of 1929,” the suit said.
“The Department is the executive agency of the Commonwealth of Pennsylvania with the duty and authority to administer and enforce CERCLA and the environmental laws of the Commonwealth of Pennsylvania, including but not limited to, the HSCA, the SWMA and the CSL.”
The suit added that industrial chemicals and other hazardous substances were allegedly disposed of in an improper fashion, and remained on the site. Their removal necessitated the plaintiffs undertaking that remediation process, with a seven-figure price tag.
“The site is a 1.12-acre property containing warehouses located in Rochester, Beaver County, Pennsylvania. The site is the location of the former Swimming Pool Doctor facility. Site operations involved chemicals used for swimming pool maintenance, machinery solvents, and other industrial chemicals that were over time abandoned and illegally disposed of, including chlorine, bonderite and hydantoin,” the suit stated.
“The Department investigated the site and found at the site a release and threatened release of hazardous substances. The Department conducted response actions at the site to remediate the release and threatened release of hazardous substances. The Department has incurred response costs in excess of $2.4 million as the result of its investigation and remediation of the release and threatened release of hazardous substances at the site.”
Arxada, LLC motioned to dismiss the case for failure to state claims upon which relief could be granted, on Oct. 16.
“Defendant Arxada, LLC moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiff Commonwealth of Pennsylvania – Department of Environmental Protection’s complaint because it fails to state a claim upon which relief may be granted against Arxada. The Department’s complaint offers a single conclusory allegation that Arxada arranged for the disposal of hazardous substances at the former Swimming Pool Doctor site. In contravention of basic federal pleading requirements, the complaint contains no factual averments in support of that naked conclusion,” per the dismissal motion.
“The only reasonable inference that can be drawn from the allegations in the complaint is that Arxada, a specialty chemical manufacturer, sold usable chemicals to the owners and operators of the site, who were in the business of formulating chemical products for use in swimming pools, among other applications. Basic Superfund jurisprudence (followed in Pennsylvania’s cleanup law) of the useful product defense precludes liability under these circumstances. Arxada cannot be held liable for another party’s failure to properly store and maintain the chemicals Arxada sold to them.”
Furthermore, according to the dismissal motion, “nor do any plausible inferences from this threadbare complaint support nuisance or other liability under Pennsylvania’s pollution laws. Nothing reasonably suggests that Arxada – a manufacturer and supplier of useful chemical products – caused a release or a public nuisance at its customer’s site.”
UPDATE
After an amended complaint was filed on Nov. 8, the plaintiff motioned for default against defendants One Brewery, Inc., Harold B. Davidson and James Randy Davidson on Jan. 25.
“On May 25, 2023, the Department filed its complaint. On Aug. 11, 2023, the Department filed Waivers of Service of Summons executed by One Brewery Place, Inc., Harold B. Davidson and James Randy Davidson and confirming service of the Department’s complaint on May 31, 2023. On Aug. 24, 2023, the Department and the default defendants each entered Stipulations for Extension of Time to Answer the Department’s complaint by Oct. 15, 2023. None of the default defendants filed a timely answer or response to the Department’s complaint; nor have appearances been entered on their behalf; nor have any sought an extension of time to respond beyond Oct. 15, 2023,” the default motion stated.
“On Nov. 8, 2023, the Department filed its amended complaint together with a Certificate of Service. On Dec. 5, 2023, the Department filed a Proof of Service, confirming service of its amended complaint on the default defendants. None of the default defendants has filed a timely answer or response to the Department’s amended complaint; nor have any stipulated to or sought from the Court an extension of time to respond.”
The following day, Jan. 26, U.S. District Court for the Western District of Pennsylvania Clerk Bradley Ruth approved the entry of default against the designated defendants.
“Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, upon request by plaintiff, default is hereby entered against Defendants One Brewery Place, Inc., Harold B. Davidson and James Randy Davidson for failure to answer or respond to plaintiff’s complaint or amended complaint,” Ruth said.
For counts of recovery of response costs and applicable interest pursuant to Section 107(a) of CERCLA, recovery of response costs and applicable interest pursuant to Sections 507(a), 507(b), 701 and 702 of HSCA, recovery of response costs and applicable interest pursuant to Sections 507(A), 1101 and 1108 of HSCA, recovery of response costs and applicable interest pursuant to Sections 601, 610 and 613 of the SWMA, recovery of response costs and applicable interest pursuant to Sections 3, 316, 401, 503, 601, 602, 605 and 611 of the CSL and recovery of response costs and applicable interest pursuant to Section 1917-A of the Administrative Code, the plaintiff is seeking, jointly and severally, a judgment in favor of the Department, for all response and nuisance abatement costs incurred by the Department at the Site together with applicable interest, costs, fees and such other relief as this Court deems appropriate.
The plaintiff is represented by Edward S. Stokan and Tyra Oliver of the Commonwealth of Pennsylvania – Department of Environmental Protection’s Southwest Office of Chief Counsel, in Pittsburgh.
Defendants M. Ultra Investment Group, LTD is represented by Edgardo Daniel Santillan of Santillan Law in Aliquippa, and Arxada, LLC is represented by Daniel Mark Krainin of Beveridge & Diamond, in New York, N.Y.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-00873
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com