Section 613 of the Pennsylvania Solid Waste Management Act (“SWMA”), Pa. Stat. Ann. tit. 35, § 6018.613, allows the Commonwealth or any municipality to recover the “costs of abatement” of “a public nuisance” under SWMA from a person who “causes a public nuisance” if the plaintiff government has in fact abated the nuisance.  This provision has been used very rarely.  Section 613 may be one of those dormant provisions that poses a significant liability risk, depending on what the courts decides counts as a compensible cost and what counts as “causing a public nuisance.” 

In a recent unreported opinion, the Commonwealth Court held that provision of scrap tires to a purported tire recycler without inquiring into whether the tire recycler had a permit or in fact was recycling the tires violated SWMA and rendered the scrap tire hauler liable for its share of the costs incurred by the Department of Environmental Protection to clean up the resulting tire pile.  Pennsylvania Department of Environmental Protection v. Blue Chip Transportation Co., No. 153 C.D. 2012 (Pa. Commw. Ct. Dec. 13, 2012). 

My monthly column in the Pennsylvania Law Weekly considers these issues further.  Read Governmental Cost Recovery Under the Solid Waste Management Act, 36 Pa. L. Weekly 96 (Jan. 29, 2013), here.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights