US v. Atlas Minerals and Chemicals, Inc., Civ. A. No. 91-5118.

• Decision Date: 03 August 1992
• Docket Number: Civ. A. No. 91-5118.
• Citation: 797 F. Supp. 411
• Parties: UNITED STATES of America v. ATLAS MINERALS AND CHEMICALS, INC., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

797 F. Supp. 411

UNITED STATES of America v. ATLAS MINERALS AND CHEMICALS, INC., et al.

Civ. A. No. 91-5118.

United States District Court, E.D. Pennsylvania.

July 8, 1992.

As Amended August 3, 1992.

Nancy Flickinger, Robin L. Juni, U.S. Dept. of Justice, Washington, D.C., for United States.

Kenneth J. Warren,^* Manko, Gold & Katcher, Bala Cynwyd, Pa., for Atlas Minerals.

OPINION

CAHN, District Judge.

This case involves the cleanup of a landfill located on Dorney Road in Berks County "the landfill" or "the site". Procedurally, this case has followed a path common to many CERCLA¹ cases. In 1986, the Environmental Protection Agency "EPA" took control of the landfill pursuant to 42 U.S.C. § 9604, and initiated a cleanup. The EPA's activities were paid for out of the "Superfund." See 42 U.S.C. § 9611. After initiating the cleanup, the EPA issued a § 9606 order, making the defendants² responsible for completing the cleanup. The United States then filed suit against the defendants, seeking to recover approximately $1.5 million in cleanup costs. The defendants, in turn, have filed third party claims for contribution against upwards of fifty third party defendants.³ In addition to seeking contribution towards the defendants' liability (if any) to the government, the defendants seek contribution towards the approximately $15 million they will have to spend in order to complete the cleanup.

The defendants have also filed counterclaims against the government, and have raised numerous affirmative defenses. The government has moved to dismiss the counterclaims pursuant to Fed.R.Civ.P. 12(b)(6), and to strike many of the affirmative defenses pursuant to Fed.R.Civ.P. 12(f).⁴ The court heard oral argument on these Motions on June 15, 1992. For the reasons which follow, the court will strike the challenged affirmative defenses, dismiss the counterclaims, and defer ruling on the defendants' recoupment claims.

I. AFFIRMATIVE DEFENSES

A. Standard for Granting a Motion Pursuant to Fed.R.Civ.P. 12(f)

Rule 12(f) provides as follows:

Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Fed.R.Civ.P. 12(f). It has been recognized that Rule 12(f) is the primary means by which a plaintiff can defeat affirmative defenses prior to trial. See United States v. Consolidation Coal Co., 1991 Westlaw 333694 at *1 (W.D.Pa. July 5, 1991); United States v. Marisol, Inc., 725 F.Supp. 833, 836 (M.D.Pa.1989); United States v. Geppert Bros., Inc., 638 F.Supp. 996, 998 (E.D.Pa.1986). Although Motions to Strike are not favored, see American Standard Life & Accident Ins. Co. v. U.R.L., Inc., 701 F.Supp. 527, 531 (M.D.Pa.1988); United States v. Hardage, 116 F.R.D. 460, 463 (W.D.Okla.1987); Geppert Bros., 638 F.Supp. at 998, they are often granted in CERCLA actions. See generally Consolidation Coal, 1991 Westlaw 333694 at *3; Kelley v. Thomas Solvent Co., 714 F.Supp. 1439, 1442 (W.D.Mich.1989). Granting a Rule 12(f) Motion is proper if the defense does not raise disputed issues of fact or law, see United States v. Kramer, 757 F.Supp. 397, 409-10 (D.N.J.1991); Marisol, 725 F.Supp. at 836; Hardage, 116 F.R.D. at 463; Geppert Bros., 638 F.Supp. at 998, and if it is clear that there are no circumstances under which the defense could succeed. See Cipollone v. Liggett Group, Inc., 789 F.2d 181, 188 (3d Cir.1986); Hardage, 116 F.R.D. at 463; Geppert Bros., 638 F.Supp. at 998.

B. The Availability of Affirmative Defenses Under CERCLA

In order to determine what affirmative defenses may be raised, the court must examine 42 U.S.C. § 9607, the section under which the government is attempting to impose liability on the defendants. Section 107 of CERCLA⁵ provides as follows:

(a) Covered persons; scope; recoverable costs and damages; interest rate; "comparable maturity" date

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section—

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for —

(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

(C) damages for injury to, destruction of, or loss of natural resources including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

the amounts recoverable in an action under this section shall include interest on the amounts recoverable under subparagraphs (A) through (D). Such interest shall accrue from the later of (i) the date payment of a specified amount is demanded in writing, or (ii) the date of the expenditure concerned. The rate of interest on the outstanding unpaid balance of the amounts recoverable under this section shall be the same rate as is specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of Title 26. For purposes of applying such amendments to interest under this subsection, the term "comparable maturity" shall be determined with reference to the date on which interest accruing under this subsection commences.

(b) Defenses

There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by —

(1) an act of God;

(2) an act of war;

(3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or

(4) any combination of the foregoing paragraphs.

42 U.S.C. § 9607.⁶ Based on this language, "a strong majority of courts have held that liability under § 107(a) of CERCLA is subject only to the defenses set out in § 107(b)." Marisol, 725 F.Supp. at 838. See also County Line Investment Co. v. Tinney, 933 F.2d 1508, 1518 n. 15 (10th Cir.1991); United States v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373, 1378 (8th Cir.1989); United States v. Monsanto Co., 858 F.2d 160, 168 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989); United States v. Skipper, 781 F.Supp. 1106, 1110 (E.D.N.C. 1991); United States v. Azrael, 765 F.Supp. 1239, 1242 (D.Md.1991); Kramer, 757 F.Supp. at 410; Kelley, 714 F.Supp. at 1445; United States v. Mottolo, 695 F.Supp. 615, 626 (D.N.H.1988); United States v. Hooker Chemicals & Plastics Corp., 680 F.Supp. 546, 557 (W.D.N.Y. 1988); United States v. Stringfellow, 661 F.Supp. 1053, 1058 (C.D.Cal.1987); Violet v. Picillo, 648 F.Supp. 1283, 1293 (D.R.I. 1986); United States v. Tyson, 1986 Westlaw 9250 at *10 (E.D.Pa. Aug. 22, 1986); United States v. Dickerson, 640 F.Supp. 448, 451 (D.Md.1986); United States v. Conservation Chemical Co., 619 F.Supp. 162, 204 (W.D.Mo.1985); State ex rel. Brown v. Georgeoff, 562 F.Supp. 1300, 1305 (N.D.Ohio 1983).⁷ These holdings are predicated on the fact that CERCLA imposes strict liability⁸ on parties responsible for contributing to the release of hazardous substances, see Aceto, 872 F.2d at 1377; Monsanto, 858 F.2d at 167; State of New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985); Violet, 648 F.Supp. at 1290 (collecting cases); Tyson, 1986 Westlaw 9250 at *2; Conservation Chemical Co., 619 F.Supp. at 191, and the fact that Congress stated that such liability would be imposed "subject only to the defenses set forth in § 9607(b)." 42 U.S.C. § 9607(a) (emphasis supplied). This court agrees, and holds that the only defenses to liability under § 9607(a) are those enumerated in § 9607(b).⁹

C. The Use of Equitable Defenses Against the Government

Although some courts have allowed the use of equitable defenses in CERCLA cases, they appear to have done so largely in cases brought under 42 U.S.C. § 9606 (relating to the EPA's power to order parties to undertake response or remedial...