United States v. Dickerson

Decision Date28 May 1986
Docket NumberCiv. No. Y-85-3249.
CourtU.S. District Court — District of Maryland
PartiesUNITED STATES of America v. Dale H. DICKERSON, et al.

F. Henry Habicht, II, Patricia Kablach Casana, Washington, D.C., Breckinridge L. Willcox, U.S. Atty., State of Md., and Glenda G. Gordon, Asst. U.S. Atty., Baltimore, Md., for plaintiff.

Alan Hilliard Legum, Annapolis, Md., for defendants Dale H. Dickerson, Dale M. Dickerson, and Isiah Pearmon.

Deborah E. Jennings, Baltimore, Md., for defendant Jotun Marine Coatings, Inc.

Charles F. Lettow, Katherine L. Rhyne, Washington, D.C., and Joseph S. Kaufman, Baltimore, Md., for defendant SCM Corp.

JOSEPH H. YOUNG, District Judge.

The United States brought this civil action under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601, et seq., to recover response costs it incurred in cleaning up a landfill known as the "Middletown Road Site" in Anne Arundel County, Maryland, four miles northwest of Annapolis. The government sued Dale H. and Dale M. Dickerson, allegedly co-owners of the site who allowed the dumping of industrial waste there for a fee between 1975 and 1983; Jotun Marine Coatings, Inc. ("Jotun"), the corporate successor of the Jotun Baltimore Copper Paint Company that allegedly contracted for the disposal of its wastes at the site; SCM Corporation, which allegedly owned 50 percent of Jotun Marine's stock and operated Jotun's Baltimore plant from 1977-1979; and Isiash Pearmon, d/b/a Pearmon's Trash Removal, who allegedly contracted for disposal of the wastes from Jotun's Baltimore plant and deposited them at the Dickersons' landfill. The complaint alleges that the Environmental Protection Agency ("EPA"), discovered concentrations of heavy metals and organic chemicals at the landfill in 1982-1983 that threatened a nearby residential area and a tributary of the Chesapeake Bay. The EPA allegedly spent approximately $561,000 removing the hazardous materials and capping the site with clay.

Jotun, Pearmon, and the Dickersons have filed answers to the complaint, asserting 17 identical affirmative defenses in identical order. The government has moved to strike defenses two through five and nine through seventeen.

The second defense asserts that the United States has "failed to join all the parties indispensable to the just adjudication of this lawsuit...." It is true that any other persons or businesses that dumped hazardous materials on the site may be liable to the government under CERCLA. But CERCLA provides for joint and several liability unless the defendants carry the burden of establishing a basis for apportionment under principles of federal common law. See, e.g., United States v. Stringfellow, 14 ELR 20385, 20386-87 (D.C.Cal. April 5, 1984); State of Colorado v. Asarco, 608 F.Supp. 1484, 1486-1492, and cases cited at 1491-92 (D.Colorado 1985); State of New York v. Shore Realty Corp., 759 F.2d 1032, 1042 n. 13 (2d Cir. 1985). The courts have consistently rejected attempts by CERCLA defendants to compel the government to round up every other available defendant, noting that defendants can protect themselves through the impleader provision of Rule 14. See, e.g., United States v. A & F Materials Co., Inc., 578 F.Supp. 1249, 1260-61 (S.D.Ill. 1984) ("it is well settled that a plaintiff may choose between joint tortfeasors when bringing an action"); United States v. Conservation Chemical Co., 589 F.Supp. 59, 63 (W.D.Mo.1984); United States v. Northeastern Pharmaceutical & Chemical Co., 579 F.Supp. 823, 845 n. 26 (W.D. Mo.1984). The government's motion to strike the defendants' second affirmative defense will be granted.

Defendants' third defense asserts that the government's claims "are barred in whole or in part by applicable statutes of limitations." 42 U.S.C. § 9612(d) contains a three-year statute of limitations for "claims" and "actions for damages" under CERCLA. After an exhaustive analysis of the language of the statute and its legislative history, Chief Judge Devine of the District of New Hampshire concluded that § 9612(d) applied only to "claims" against the Superfund and "actions for damages to natural resources" under § 9607(a)(4)(C), as those terms are used consistently throughout the statute. Judge Devine also concluded that because a CERCLA suit for reimbursement of response costs was equitable in nature, no analogous legal limitations period applied, and the doctrine of laches was the only applicable limitation on CERCLA reimbursement suits. United States v. Mottolo, 605 F.Supp. 898, 901-09 (D.N.H.1985). The Court finds Judge Devine's analysis convincing, and adopts it entirely. See also United States v. Conservation Chemical Co., 619 F.Supp. 162, 213 (W.D.Mo.1985). Accordingly, the government's motion to strike the defendants' third affirmative defense will be granted.

Defendants' fourth affirmative defense asserts that the government's claims "are barred by laches." However, when the United States brings suit in its sovereign capacity, the doctrine of laches may not bar the suit. See United States v. Mottolo, supra, and cases cited at 605 F.Supp. 909; but see United States v. Conservation Chemical Co., supra, 619 F.Supp. at 213, and United States v. Reilly Tar & Chemical Corp., No. 4-80-469 (D.Minn. June 14, 1984), slip op. at 5 (acknowledging weight of precedent against applying laches to government suits, but refusing to strike laches defense in a factual vacuum). Accordingly, the government's motion to strike the defendants' fourth affirmative defense will be granted.

The defendants' fifth affirmative defense asserts that the government's claims "are barred under the doctrine of estoppel." The government argues that it may not be estopped from acting to protect the public interest. In Furcron v. United States, 626 F.Supp. 320 (D.Md.1986), the Court acknowledged that estoppel is available against the United States in very limited circumstances, if at all, but followed the Supreme Court in refusing to adopt "a flat rule that estoppel may not in any circumstances run against the government." Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 60, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984). The Court declines the invitation to adopt a flat rule here. The government's motion to strike the defendants' fifth affirmative defense will be denied.

The defendants' ninth defense asserts that "at all relevant times, the defendants acted in a proper and reasonable manner, exercised due care, complied with all laws and regulations concerning waste disposition, and otherwise conducted their operations reasonably and lawfully." This defense has no application to this suit, because CERCLA imposes strict liability for the classes of defendants listed in § 9607(a)(1), (4), subject only to the very limited defenses enumerated in § 9607(b). See, e.g., J.V. Peters & Co., Inc. v. Administrator, Environmental Protection Agency, 767 F.2d 263, 266 (6th Cir.1985); State of New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985); United States v. Maryland Bank & Trust Co., 632 F.Supp. 573, 576 (D.Md.1986) (Judge Northrop). Accordingly, the government's motion to strike the defendants' ninth defense will be granted.

The tenth and eleventh defenses assert that at the time of the activities complained of, the defendants could not reasonably have been aware that their activities were unlawful under CERCLA, or that the materials they disposed of were hazardous substances within the meaning of CERCLA. To the extent that these defenses plead a defense of due care, they must be stricken for the reasons stated immediately above.

The government construes these defenses to plead a defense of unconstitutional retroactivity. The defendants' seventeenth defense asserts that a retroactive application of CERCLA would violate due process and impair the right to contract. The courts have consistently ruled that CERCLA's language and legislative history overrule the presumption against retroactive application of statutes, and have rejected similar constitutional attacks upon the Act. See, e.g., United States v. Ottati & Goss, Inc., 630 F.Supp. 1361 (D.N.H.1985); United States v. Argent Corp., 14 ELR 20497 (D.N.H. May 4, 1984) Available on WESTLAW, DCTU database; United States v. Conservation Chemical Co., 619 F.Supp. 162, 213-14 (W.D.Mo.1985); United States v. Shell Oil Co., 605 F.Supp. 1064, 1072-73 (D.Colo.1985); United States v. South Carolina Recycling and Disposal, Inc., 14 ELR 20272, 20276 (D.S.C. Feb. 23, 1984); United States v. Northeastern Pharmaceutical & Chemical Co., 579 F.Supp. 823, 840-41 (W.D.Mo.1984); but see United States v. Stringfellow, 14 ELR 20388 (D.C. Cal. April 4, 1986) (reserving judgment on retroactivity as applied to defendants). Accordingly, the government's motion to strike defense seventeen will be granted. The government's motion will be granted as to defenses ten and eleven insofar as those defenses plead due care or constitutional defects, but the Court's ruling does not eliminate the possibility that the defendants' knowledge may be relevant to an estoppel defense, or to equitable actions for apportionment.

The twelfth and fifteenth defenses are variations on the theme that the government failed to give the defendants notice before instituting this suit. Section 9612(a) of CERCLA provides:

All claims which may be asserted against the fund pursuant to Section 9611 of this title shall be presented in the first instance to the owner, operator, or guarantor of the vessel or facility from
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