                                                              NOT PRECEDENTIAL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)
                                         ______

                              OPINION OF THE COURT
                                      ______

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,
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.1 For 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.
                                             2
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,”5 to

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.

                                            3
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.
                                             4
       The District Court had jurisdiction pursuant to section 113(b) of CERCLA, 42

U.S.C. § 9613(b),7 and 28 U.S.C. § 1331.8 This 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”9 or “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).
                                             5
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).
                                              6
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.
                                                7
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).
                                             8
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).
                                            9
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.
                                              10
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.)
                                            11
      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.




                                            12
