NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 13-1209

______

Commonwealth of Pennsylvania Department of Environmental Protection,

 Appellant

v.

Beazer East, Inc; Boldan, Inc; Carnegie Mellon Univ; CBS Corp; Exxon Mobil Corp.

__________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2:09-cv-01123)

Chief Magistrate Judge: Honorable Lisa P. Lenihan

______

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 17, 2013

Before: JORDAN, VANASKIE, and VAN ANTWERPEN, Circuit Judges

(Filed: January 2, 2014)

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OPINION OF THE COURT

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VAN ANTWERPEN, Circuit Judge.

The Commonwealth of Pennsylvania Department of Environmental Protection 

(“DEP/Appellant”) appeals from the orders of the United States District Court for the 

Western District of Pennsylvania granting the motions to dismiss in favor of Beazer East, 
2

Inc. (“Beazer”), Boldan, Inc. (“Boldan”), Carnegie Mellon University (“CMU”), CBS 

Corporation (“CBS”), and Exxon Mobil Corporation (“Exxon”). Appellant brought suit 

in federal court seeking reimbursement for cleanup costs under the Comprehensive 

Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 

U.S.C. §§ 9601-9675. Appellant had previously raised similar claims under the 

Pennsylvania Hazardous Sites Cleanup Act (“HSCA”), 35 P.S. § 6020.101 et seq., in 

state court.1For reasons which follow, we affirm the decision of the District Court, 

granting the motions to dismiss for failing to file within the requisite time period 

prescribed under CERCLA’s statute of limitations. 

I. 

The site in question (“Site”) is a 118 acre former landfill located in Penn 

Township, Westmoreland County, Pennsylvania. The Site was formerly a strip mine and 

operated as a landfill for industrial and municipal waste, buried in pits on the property. 2

Beginning in 1988, the Pennsylvania DEP was aware of a release or threatened release of 

hazardous substances at the Site, and by 1999 completed investigative assessments and 

 

1

The Pennsylvania Court of Common Pleas, Westmoreland County dismissed a prior 

state law action under the HSCA, citing DEP for failing to “first institute or initiate an 

administrative or judicial enforcement action against a responsible owner or operator on 

the site.” DEP v. Beazer, East, Inc., No. 08-7022 (Westmoreland County, Pa. May 6, 

2009). Viacom, Inc., a party in the state court action, was replaced by CBS Corporation.

2

The Site was originally under the control of William Bolen as an unpermitted landfill 

between 1958 and 1962 and sold to Boldan, Inc., which owned and continued to operate 

it until 1970 when it was denied a permit by the Commonwealth due to excessive 

leaching concerns. The Site has two small tributaries of the Brush Creek that run through 

it and is now used for recreational hiking and hunting. It is surrounded by residential 

developments and access is largely unrestricted. 
3

reports.

3

From December 2001 until September 2002 DEP conducted several sampling 

events and excavated test pits, exposing 17 drums containing paint wastes, solvents, and 

acids that were removed and disposed of off site.4

Following the testing period, DEP sought to undertake an “interim response,”5to 

remove and dispose all hazardous materials from the Site and grade and backfill the land.

Between June 2003 and January 2004 the interim response was completed, removing 

7,835 drums and containers, 490.82 tons of waste, 3,500 tons of contaminated soil, 20 gas 

cylinders, and 60 tons of tires. Once removal was over, the land was restored and 

groundwater monitors placed during the investigatory period were dismantled and 

 

3

The report and subsequent publications noted an unknown quantity of industrial waste 

dumped, burned, or buried at the Site, most notably 55-gallon barrels that were in various 

states of disrepair. 

4

The actions undertaken during this period were done so in accordance with the HSCA, 

specifically Section 501, which states:

Where there is a release or substantial threat of release of a contaminant which 

presents a substantial danger to the public health or safety or the environment 

or where there is a release or threat of a release of a hazardous substance, the 

department shall investigate and, if further response action is deemed 

appropriate, the department shall notify the owner, operator or any other 

responsible person . . . or may undertake any further investigation, interim 

response or remedial response relating to the contaminant or hazardous 

substance which the department deems necessary or appropriate to protect the 

public health, safety or welfare or the environment.

35 P.S. § 6020.501. 

5

The terminology used for these actions is at dispute amongst the parties. See infra Part 

IV. DEP claims its actions were “limited,” yet designed and intended to be a final and 

permanent remedy. “An interim response may be taken before the development of an 

administrative record when, upon the basis of the information available to the department 

at the time of the interim response, there is a reasonable basis to believe that prompt 

action is required to protect the public health or safety or the environment.” 35 P.S. § 

6020.505.
4

abandoned. The cost to DEP for this removal was $3.7 million, and DEP sought to 

recover this jointly and severally from the five Appellees in the District Court complaint 

that is now on appeal.

II. 

The claim against the present Appellees was filed, pursuant to CERCLA, 42 

U.S.C. § 9706, in the United States District Court for the Western District of 

Pennsylvania on August 21, 2009. DEP filed an Amended Complaint on March 31, 2010, 

pursuant to an order of the Court. The action before the District Court was dismissed via 

motion as to CMU, CBS, and Exxon for a statute of limitations violation. DEP filed a 

Motion for Reconsideration or in the alternative a motion for Certification of Appeal, 

which was denied on September 28, 2011. On October 28, 2011, DEP dismissed all 

remaining claims against Beazer and Boldan under Federal Rule of Civil Procedure

41(a)(2), and the District Court closed the case.

DEP filed its first appeal with this Court, which was denied on April 24, 2012, the 

panel finding the voluntary dismissal on October 28, 2011 did not provide the finality 

necessary for appeal. On January 9, 2013, Beazer and Boldan, the two remaining parties 

in the case, moved to dismiss DEP’s Amended Complaint under Federal Rule of Civil 

Procedure 12(b)(6). The Court granted the motion and this appeal followed.6

III. 

 

6 DEP’s notice of appeal encompassed both the November 3, 2010 and January 11, 2013 

dismissals of each claim against the five parties named above. 
5

The District Court had jurisdiction pursuant to section 113(b) of CERCLA, 42 

U.S.C. § 9613(b),

7

and 28 U.S.C. § 1331.8This Court has jurisdiction pursuant to 28 

U.S.C. §§ 1291, 2106.

We exercise plenary review over a district court’s grant of a motion to dismiss 

pursuant to Federal Rule of Civil Procedure 12(b)(6). Grier v. Klem, 591 F.3d 672, 676 

(3d Cir. 2010). The key inquiry in the matter is whether, accepting the factual allegations 

in the light most favorable to the Appellant, and drawing all reasonable inferences 

therefrom, the complaint “contain[ed] sufficient factual matter, accepted as true, to state a 

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 

(2009) (internal quotation marks omitted).

IV. 

The determination of whether a plausible claim for relief exists turns on whether 

the action undertaken by DEP on the Site was “removal”9or “remedial action,”

10

as the

 

7

“Except as provided in subsections (a) and (h) of this section, the United States district 

courts shall have exclusive original jurisdiction over all controversies arising under this 

chapter, without regard to the citizenship of the parties or the amount in controversy. 

Venue shall lie in any district in which the release or damages occurred . . . .” 42 U.S.C. § 

9613(b). 

8

The parties voluntarily consented to have a United States Magistrate Judge conduct 

proceedings in the case under 28 U.S.C. § 636(c)(1). 
6

 

9

The terms “remove” or “removal” means, in part:

[T]he cleanup or removal of released hazardous substances from the 

environment, such actions as may be necessary taken in the event of the threat 

of release of hazardous substances into the environment, such actions as may 

be necessary to monitor, assess, and evaluate the release or threat of release of 

hazardous substances, the disposal of removed material, or the taking of such 

other actions as may be necessary to prevent, minimize, or mitigate damage to 

the public health or welfare or to the environment, which may otherwise result 

from a release or threat of release.

42 U.S.C. § 9601(23).

10 The terms “remedy” or “remedial action” means:

[T]hose actions consistent with permanent remedy taken instead of or in 

addition to removal actions in the event of a release or threatened release of a 

hazardous substance into the environment, to prevent or minimize the release 

of hazardous substances so that they do not migrate to cause substantial 

danger to present or future public health or welfare or the environment. The 

term includes, but is not limited to . . . cleanup of released hazardous 

substances and associated contaminated materials, recycling or reuse, 

diversion, destruction, segregation of reactive wastes, dredging or excavations, 

repair or replacement of leaking containers, collection of leachate and runoff, 

onsite treatment or incineration, provision of alternative water supplies, and 

any monitoring reasonably required to assure that such actions protect the 

public health and welfare and the environment. . . . [T]he term includes offsite 

transport and offsite storage, treatment, destruction, or secure disposition of 

hazardous substances and associated contaminated materials.

42 U.S.C. § 9601(24). 
7

statute of limitations period differs for each pursuant to 42 U.S.C. § 9613(g)(2)(A-B).

11

Appellees’ claim the action was a “removal” and since the DEP finished its clean up in 

January 2004, the complaint filed in August 2009 was beyond the three-year period for 

timely filing.12 DEP argues that even though its actions were labeled as “interim”13 they 

were in fact a permanent remedy and should qualify as “remedial” under CERCLA, thus 

invoking the six-year statute of limitations period. For a “remedial” action, the starting 

date for the statute of limitations would normally have been June of 2003. However, DEP 

entered into a tolling agreement with all five Appellees on March 6, 2009 agreeing, for 

the purposes of the statute of limitations under CERCLA, that the six month period from 

February 20, 2009 to August 20, 2009 would not be included in the calculations. This 

agreement had the effect of moving the filing date from June 2009 to December 2009. 

Accordingly, Appellants claim that their filing date of August 2009 was within the six 

year statute of limitations. For reasons outlined below, in reading the facts in the light 

 

11 The statute of limitations differs amongst the terms. 

An initial action for recovery of the costs referred to in section 9607 of this 

title must be commenced-

(A) for a removal action, within 3 years after completion of the removal action 

. . . and 

(B) for a remedial action, within 6 years after initiation of physical on-site 

construction of the remedial action[.]

42 U.S.C. § 9613(g)(2)(A-B). 

12 In the alternative, Appellees state that regardless of how the actions are qualified, DEP 

failed to file in a timely manner in spite of the Tolling Agreement entered into between 

the parties. 

13 Pennsylvania’s state statute, codified in congruence with CERCLA, uses slightly 

different terminology to separate the terms in question. Instead of “removal,” actions 

undertaken along a similar vein are codified as “interim,” and “remedial actions” are only 

defined as “[a]ny response which is not an interim response.” 35 P.S. § 6020.103.
8

most favorable to the Appellant, we find DEP instituted a “removal” action and failed to 

timely file. Thus, the District Court acted properly in its order granting Appellees’ 

motions to dismiss.

Courts and agencies have struggled to distinguish removal and remedial actions 

under § 9607(a) of the statute.14 Environmental Protection Agency (“EPA”) regulations 

describe a “removal” action as a subsection or precursor to “remedial action.” 40 C.F.R. § 

300.415(d) (“Removal actions shall, to the extent practicable, contribute to the efficient 

performance of any anticipated long-term remedial action with respect to the release 

concerned.”).15 Remedial action is defined as “those actions consistent with permanent 

remedy taken instead of, or in addition to, removal action in the event of a release or 

threatened release of a hazardous substance into the environment . . . .” Id. § 300.5 

(emphasis added). 

Decisions in the courts of this Circuit have furthered the regulatory definitions, 

postulating the general distinction is that removal actions are primarily those intended for 

short-term clean-up arrangements, while remedial actions effect long-term or permanent 

remedies. See United States v. Alcan Aluminum Corp., 964 F.2d 252, 259 n.10 (3d Cir.

 

14 “CERCLA is not a paradigm of clarity or precision. . . . Problems of interpretation have 

arisen from the Act's use of inadequately defined terms, a difficulty particularly apparent 

in the response costs area.” Artesian Water Co. v. Gov’t of New Castle Cnty., 851 F.2d 

643, 648 (3d Cir. 1988). 

15 Examples cited in the regulations include “[e]xcavation, consolidation, or removal of 

highly contaminated soils from drainage or other areas—where such actions will reduce 

the spread of, or direct contact with, the contamination” and “[r]emoval of drums, barrels, 

tanks, or other bulk containers that contain or may contain hazardous substances or 

pollutants or contaminants—where it will reduce the likelihood of spillage; leakage; 

exposure to humans, animals, or food chain; or fire or explosion.” 40 C.F.R. § 

300.415(e)(6), (7). 
9

1992) (“Typically, a ‘removal’ action is an action intended to remove the hazardous 

waste from the area, whereas a ‘remedial’ action involves a long-term effort to remedy 

the damaged environment.”).

16

Lower courts and Pennsylvania regulatory decisions have been more forthcoming 

about a difference between the terms, as have our sister Circuit. “A removal action is not 

converted into a remedial action just because it effects a permanent remedy.” Hatco 

Corp. v. W.R. Grace & Co. Conn., 849 F.Supp. 931, 962 (D.N.J. 1994); see also General 

Elec. Co. v. Litton Indus. Automation Sys., 920 F.2d 1415, 1419 n.4 (8th Cir. 1990) 

(rejecting argument that “an excavation that totally and permanently cleans up a 

hazardous waste site never can be classified as a removal action.”). Additionally, the 

Pennsylvania Environmental Hearing Board “interpret[s] the term ‘interim response’ to 

mean response actions taken prior to the development and execution of a remedial 

action.” Comm. of Penn. Dept. of Enviro. Prot. v. Crown Recycle & Recovery, Inc., 1998 

E.H.B. 1204 (Pa. Env. Hrg. Bd. Nov. 4, 1998).

V.

We exercise plenary review over the filings of the parties, including matters of 

public record and authentic documents. Pension Benefit Guar. Corp. v. White Consol. 

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). We believe the District Court properly 

 

16 The Supreme Court has attempted to define the terms, stating, “[g]overnmental 

response consists of ‘removal,’ or short-term cleanup, § 9601(23), and ‘remedial action,’ 

or measures to achieve a ‘permanent remedy’ to a particular hazardous waste problem, § 

9601(24).” Exxon Corp. v. Hunt, 475 U.S. 355, 360, 363 (1986).
10

granted the motions to dismiss because the actions undertaken by Appellant were a 

“removal,” and thus, the statute of limitations period was exceeded.

17

Even when taken in the light most favorable to the Appellant, the Amended 

Complaint fails to justify the conclusion that the disposal on the Site was “remedial” and 

thus subject to a longer statute of limitations period. In its early public bulletins (attached

as documents before this Court), DEP initially categorized its cleanup actions as an

“interim” response. Later, DEP adjusted its terminology, calling it a “limited interim 

response,” claiming it was akin to a “remedial” response under CERCLA. Yet, DEP

offers no evidence as to where the term “limited” is defined nor effectively articulates

what about the actions undertaken made them “remedial” as opposed to “removal.” Next, 

although it claims that costs ran beyond the $2 million cap for state “interim” (aka 

“removal”) responses, DEP’s plan said the work would “cost less than $2 million and 

take less than 1 year,” and thus the final price was only a cost overrun as opposed to 

remedial action.18 (Joint Appendix at 182.) Furthermore, DEP has filed papers adjoining 

its brief which contradict its present arguments. In its 2003 Statement of Decision, an

agency document drafted by the DEP outlining the plan to be undertaken on the Site, 

 

17 Because the actions of DEP were “removal,” the statute of limitations period is three 

years, commencing upon completion of the work. 42 U.S.C. § 9613(g)(2)(A). DEP 

finished and backfilled the land in June 2004 and thus a filing made in August 2009, even 

considering the Tolling Agreement, is not timely. 

18 The plan chosen as outlined in the Interim Response proposal called for removal and 

disposal of hazardous waste with a cost estimate of $1.8 million. This cost is within the 

statutorily prescribed standards of “interim” under the HSCA. See 35 P.S. § 6020.103. An 

interim response “may exceed [one year and $2 million] limitations [] where . . . (4) 

[c]ontinued response action is otherwise appropriate and consistent with future remedial 

response to be taken.” 35 P.S. § 6020.103.
11

DEP stated there was “an immediate threat of a release of hazardous substances . . . that 

presents a substantial danger to the public health, safety, and the environment.” DEP 

continued, stating, “[t]he response is not a final remedial response19 pursuant to Section 

504 of the HSCA. . . . Additional response action may be needed to achieve a complete 

and final cleanup for the site.” (Id. at 137.) (emphasis added). Despite these prior 

statements, DEP now argues “[m]ultiple paragraphs of DEP’s Amended Complaint allege 

that DEP’s response did not address an immediate or imminent release . . . determin[ing] 

that a response to address an immediate or imminent threat was not necessary.” 

(Appellant’s Brief at 39.)

In applying the various regulatory and statutory definitions to the actions of 

Appellant, what was undertaken was a “removal” action. The actions were a “cleanup or 

removal of released hazardous substances” more than a “permanent remedy.” See 42 

U.S.C. § 9601(23)-(24). In fact, DEP presumed in its prior Statement of Decision that 

“[a]dditional response action may be needed to achieve a complete and final cleanup for 

the site.” (Joint Appendix at 188.) What was undertaken was intended to “remove the

hazardous waste from the area,” not “remedy the damaged environment.” United States v. 

Alcan Aluminum Corp., 964 F.2d 252, 259 n.10 (3d Cir. 1992).

20

 

19 “Final remedial responses under this act shall meet all standards, requirements, criteria 

or limitations which are legally applicable or relevant and appropriate under the 

circumstances presented by the release or threatened release of the hazardous substance 

or contaminant and shall be cost effective.” 35 P.S. § 6020.504. 

20 “The Department determined that removal and disposal of the hazardous substances 

was the appropriate course of action.” (Joint Appendix at 176.) 
12

Appellant sought further discovery from the District Court to better define the 

term “limited” and provide greater factual justification for its actions being “remedial.”

Even drawing all reasonable inferences, our review of the amended complaint fails to 

find either a definition for the term “limited interim response” or viable justification of 

“remedial” action. Thus, we interpret the actions as “removal” and, therefore, Appellant 

failed to file a claim within the time requirements under the statute of limitations. 

Accordingly, the dismissal by the District Court was valid. 

VI. 

For the foregoing reasons, the Order of the District Court granting Appellees’ 

motions to dismiss is affirmed.