US v. Azrael, Civ. A. No. WN 89-2898.

• Citation: 765 F. Supp. 1239
• Decision Date: 30 April 1991
• Docket Number: Civ. A. No. WN 89-2898.
• Parties: UNITED STATES of America and State of Maryland v. Edward AZRAEL, et al.
• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)

765 F. Supp. 1239

UNITED STATES of America and State of Maryland v. Edward AZRAEL, et al.

Civ. A. No. WN 89-2898.

United States District Court, D. Maryland.

April 30, 1991.

Robin Lancaster, U.S. Dept. of Justice, Land and Natural Resources Div., Environmental Enforcement Section, Jon M. Lipschultz, U.S. Dept. of Justice, Environmental Defense Section, Washington, D.C., Andrew S. Goldman, pro hoc vice, Asst. Regional Counsel, U.S. Environmental Protection Agency, Philadelphia, Pa., and Richard D. Bennett, U.S. Atty., D.Md., for plaintiff U.S.

J. Joseph Curran, Jr., Catherine M. Flanagan, Michael C. Powell and the Office of the Atty. Gen. of Maryland, for intervening plaintiff State of Md.

Warren K. Rich and Frank E. Couper, Rich, Tucker and Rice, Annapolis, Md., for defendants Edward Azrael, Harriet Azrael and Estate of Cele Landay.

William N. Hedeman, Robert Brager and Paul E. Hagen, Beveridge & Diamond, Washington, D.C., for defendant AT & T and third-party defendant Sweetheart Cup Co., Inc.

Samuel I. Gutter and Teresa A. Howie, Sidley & Austin, pro hoc vice, Washington, D.C., for defendant AT & T.

Mark Grummer and Brian R. Land, Kirkland & Ellis, Washington, D.C., for defendant General Motors Corp.

William Weissman and Cynthia J. Morris, Piper & Marbury, Washington, D.C., and Ronald Byrd, Colleen A. Lamont, Baltimore, Md., for defendant Baltimore Gas & Elec. Co.

William G. Beck, Lathrop, Norquist & Miller, Kansas City, Mo., for defendant Browning-Ferris, Inc.

Frederick Sullivan, McCarthy & Sullivan, Bowie, Md., for defendant J. William Parker & Sons, Inc.

MEMORANDUM

NICKERSON, District Judge.

Currently pending before the Court are motions to dismiss the counterclaims pursuant to Fed.R.Civ.P. 12(b)(1) and (6) filed by the United States of America and the State of Maryland. (Paper Nos. 39, 47). These motions have been fully briefed and supplemental authorities have been filed. After hearing arguments on the motions to dismiss and carefully reviewing the pleadings and supporting papers, the motions to dismiss will be granted for the reasons set forth below.

I. BACKGROUND

The United States of America (the "Government" or the "United States") brought this action against nine potentially responsible parties to recover cleanup costs incurred by the United States under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601, et seq. and seeking a declaratory judgment for future cleanup costs. The State of Maryland ("Maryland" or "the State") has intervened as plaintiff claiming that it has also incurred cleanup costs, and seeks to recover those costs under CERCLA and state law.

The site at issue is an 8-acre parcel of land located near the intersection of Lombard and Kane Streets in Baltimore, Maryland (the "site"). From at least 1966 to 1983, various wastes, including wastes containing hazardous substances, were deposited at the site. In 1984, after attempting unsuccessfully to secure cleanup of the site by the owners, Maryland requested the Environmental Protection Agency's ("EPA") assistance in securing the cleanup of the site. From 1984 to the present, EPA has conducted response actions at the site pursuant to its cleanup authority under CERCLA. On or about August, 1989, Maryland entered into a State Superfund Contract pursuant to Section 104 of CERCLA under which the EPA and the State agreed to jointly fund remediation of the site.¹

Defendants, Edward Azrael, Harriet Azrael, and Cele Landay ("Azrael and Landay"), American Telephone and Telegraph Company ("AT & T"), General Motors Corporation ("GM"), Baltimore Gas & Electric Company ("BG & E"), Browning-Ferris, Inc. ("BFI") and J. William Parker & Sons, Inc. ("Parker") have filed counterclaims against the United States and Maryland alleging that they are also potentially responsible under CERCLA Section 107(a)(3) as parties who arranged for the disposal of hazardous substances at the site,² and that they are responsible for contribution under Section 113 of CERCLA.³ The counterclaims relate to actions taken by the EPA and its contractors during EPA's removal action at the site and are similar in substance. The counterclaim asserted by defendant Parker, for example, states:

The United States by contract, agreement or otherwise arranged for the treatment or disposal of hazardous substances owned or possessed by the United States, at a facility owned or operated by another party or entity and containing such hazardous substances. Specifically, the United States arranged for its contractors to spray wastes containing hazardous substances, including toluene, over the Facility.⁴

The counterclaims also allege that the defendants are entitled to indemnification from the plaintiffs in the event they are found liable for response costs at the site.

The United States and Maryland have moved to dismiss the counterclaims, alleging that they are barred by the doctrine of sovereign immunity. This Court agrees with the United States and Maryland, and will dismiss the counterclaims.

II. LEGAL STANDARDS

A motion made pursuant to Fed.R.Civ.P. 12(b)(6) allows a claim to be dismissed for failure to state a claim upon which relief can be granted. The purpose of a motion under Rule 12(b)(6) is to test the legal sufficiency of the statement of the claim. Chertkof v. Baltimore, 497 F.Supp. 1252, 1258 (D.Md.1980). The standard for a motion to dismiss is well known: a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). For the purposes of ruling on a motion under Rule 12(b)(6), the Court must accept the allegations contained in the complaint as true, and must liberally construe the complaint as a whole. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969).

Keeping these standards in mind, the Court will address the arguments presented by the parties.

III. MERITS

1. Statutory and Regulatory Background

Before addressing the merits of the motions, the Court will review the applicable provisions under CERCLA.

CERCLA authorizes the EPA to take response actions to minimize and eliminate the dangers posed by threatened or actual releases of hazardous substances through remedial or removal actions. 42 U.S.C. § 9604(a).⁵ The Act further authorizes the United States and states to bring a cost recovery action against parties responsible for the waste to recover "all costs of removal or remedial action incurred by the United States Government ... not inconsistent with the National Contingency Plan." 42 U.S.C. § 9607(a)(4)(A).⁶ This provision operates by imposing strict liability for these costs on four categories of responsible parties, described in Section 107(a)(1)-(4).⁷ An otherwise liable party under Section 107 may avoid liability only by establishing one of the three affirmative defenses enumerated in Section 107(b). 42 U.S.C. § 9607(b)⁸ "States" and the "United States Government" are explicitly included within the statute's definition of "persons" subject to liability under Section 107. 42 U.S.C. § 9601(21).

Section 120(a)(1) addresses the federal government's potential liability under the statute and provides that "each department, agency, and instrumentality of the United States ... shall be subject to, and comply with, this chapter in the same manner and to the same extent ..., as any nongovernmental entity, including liability under section 9607 of this title." 42 U.S.C. § 9620(a)(1).

Section 101(20)(D) addresses a state's potential liability under CERCLA. This section excludes from the category of "owners and operators" states which "acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government involuntarily acquires title by virtue of its function as sovereign." The section continues

the exclusion provided under this paragraph shall not apply to any State or local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility, and such a State or local government shall be subject to the provisions of this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title.

42 U.S.C. § 9601(20)(D).

Finally, Section 107(d) of CERCLA, 42 U.S.C. § 9607(d), provides an express exemption from liability under Section 107(a) for "persons" engaged in cleanup activities and for states and local governments responding to an emergency created by the release or threatened release of hazardous substances.⁹

Like CERCLA, Maryland's state superfund program authorizes the Maryland Department of the Environment to respond to the release or threat of release of hazardous substances and in the absence of a prompt and proper response action undertaken by the responsible parties. Md.Env't Code Ann. § 7-222(a) (1989). The State program's liability sections duplicate the federal liability scheme in large part. See Md.Env't Code Ann. § 7-222(a), (b) (1989).

2. Motions to Dismiss

The question presented by the motions to dismiss is whether Congress intended the Government and states to be potentially liable under Section 107(a) of CERCLA when the EPA and states carry out their statutory responsibilities under CERCLA and state law to clean up hazardous waste sites. After reviewing the language and statutory framework of CERCLA, as well as the policies underlying the statute, the Court finds no such waiver with respect to the contribution counterclaims asserted in this case.¹⁰

It is well established that the United States is immune from suit except as Congress specifically provides, and any waiver of immunity is to be strictly construed in favor of the United States. United States...