US v. Iron Mountain Mines, Inc., Civ. No. S-91-768 MLS

• Decision Date: 20 January 1993
• Docket Number: Civ. No. S-91-768 MLS,S-91-1167 MLS.
• Citation: 812 F. Supp. 1528
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiff, v. IRON MOUNTAIN MINES, INC., et al., Defendants. STATE OF CALIFORNIA, Plaintiff, v. IRON MOUNTAIN MINES, INC., et al., Defendants.

812 F. Supp. 1528

UNITED STATES of America, Plaintiff, v. IRON MOUNTAIN MINES, INC., et al., Defendants.

STATE OF CALIFORNIA, Plaintiff, v. IRON MOUNTAIN MINES, INC., et al., Defendants.

Civ. Nos. S-91-768 MLS, S-91-1167 MLS.

United States District Court, E.D. California.

September 21, 1992.

Memorandum Denying Reconsideration January 20, 1993.

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David B. Glazer, U.S. Dept. of Justice, Environmental & Natural Resources Div., Michael B. Hingerty, U.S. E.P.A., San Francisco, CA, Yoshinori H.T. Himel, Asst. U.S. Atty., U.S. Attorney's Office, Sacramento, CA, for plaintiff U.S.

Paul B. Galvani, Ropes and Gray, Boston, MA, Thomas G. Redmon, Matthew W. Powell, Wilke, Fleury, Hofelt, Gould & Birney, Sacramento, CA, for defendant Rhône-Poulenc Basic Chemicals Co.

Bruce H. Jackson, Edward S. Atkinson, Jr., Baker & McKenzie, San Francisco, CA, for defendant T.W. Arman and Iron Mountain Mines, Inc.

MEMORANDUM AND ORDER

MILTON L. SCHWARTZ, District Judge.

These consolidated cost recovery actions arise under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. § 9601 et seq. The actions concern Iron Mountain Mine, a parcel of land northwest of Redding, California, that for 100 years was mined for iron, zinc, copper, silver, gold, and pyrite ores. According to plaintiffs, intensive mining has fractured the land, causing severe acid mine drainage ("AMD") that poses a threat to the environment.

I. Procedural Background.

On August 11, 1992, the court heard plaintiff United States of America's motion for partial summary judgment on defenses, plaintiff State of California's motion to strike defenses of defendant Rhône-Poulenc Basic Chemicals Co. ("RP"), and plaintiff State of California's motion to strike defenses of defendants Iron Mountain Mines, Inc., and T.W. Arman ("IMMI/Arman"). David B. Glazer appeared on behalf of plaintiff United States, Lisa Trankley Sato appeared on behalf of plaintiff State of California, Paul B. Galvani appeared on behalf of defendant RP, and Edward S. Atkinson appeared on behalf of defendants IMMI/Arman.

The defenses subject to plaintiffs' motions are enumerated below as they are enumerated in defendants' answers and each defense is fully described in the text of this memorandum. For convenience, the defenses are cited herein as follows: for example, "RP1-US" denotes the first defense of defendant Rhône-Poulenc Basic Chemicals Co. in the United States case; "IMMI5-CA" denotes the fifth defense of defendants Iron Mountain Mines, Inc., and T.W. Arman in the California case. Rulings on the motions as to particular defenses employ the same citation form.

One procedural nicety must be mentioned. Although California moves to strike particular defenses (see Fed.R.Civ.P. 12(f)), the United States seeks summary adjudication of many of the same defenses (see Fed.R.Civ.P. 56). The United States has also joined in California's motion to strike. Both motions raise similar or identical legal issues and, with some exceptions, are directed to the same defenses. Some defenses may be appropriately stricken as to both plaintiffs. But, because California has not sought summary adjudication, summary judgment will not be awarded in California's favor on any defense.

II. Substantive Background.

Plaintiffs' motions arise from CERCLA's scheme of quasi-strict liability. See, e.g., United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1377 (8th Cir.1989) ("Most courts have held CERCLA imposes strict liability"); United States v. Monsanto Co., 858 F.2d 160, 167 (4th Cir.1988) ("We agree with the overwhelming body of precedent that has interpreted section 107(a) as establishing a strict liability scheme"), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989); United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 732 n. 3 (8th Cir.1986) ("NEPACCO") ("Most cases have imposed strict liability"), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). CERCLA section 107(a)(4)(A) holds certain persons liable for "all costs of removal or remedial action incurred by the United States government or a State" so long as those costs are "not inconsistent with the national contingency plan "NCP"." 42 U.S.C. § 9607(a)(4)(A). Persons liable include "the owner and operator of a vessel or a facility" and "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." 42 U.S.C. § 9607(a)(1) and (2). The first sentence of section 107 states that CERCLA liability is "subject only to the defenses set forth in subsection (b) of this section." Id. Only three defenses are listed in section 107(b): (1) "act of God"; (2) "act of war"; and (3) "act or omission of a third party other than an employee or agent of the defendant...." 42 U.S.C. § 9607(b). A fourth provision states that "any combination of the foregoing" defenses will also establish no liability.

III. Standards of Review.

A. Summary Judgment under Rule 56.

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate when the moving party shows that "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Federal Rule of Civil Procedure 56(c); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Jung v. F.M.C. Corp., 755 F.2d 708, 710 (9th Cir.1985).

In summary judgment practice, the moving party

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324, 106 S.Ct. at 2553. Indeed, summary judgment should be entered, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. "A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. at 2552. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. at 2553.

If the moving party meets its initial responsibility, the burden shifts to the opposing party to establish that a genuine issue of material fact actually exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). In attempting to establish that a factual dispute exists, the opposing party may not rely upon its pleading denials, but must tender evidence of specific facts in the form of affidavits or admissible discovery material, or both, in support of its contention that a dispute exists. Rule 56(e); Matsushita, supra, 475 U.S. at 586-87, 106 S.Ct. at 1356. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

B. Motion to Strike under Rule 12(f).

Federal Rule of Civil Procedure 12(f) provides that, on motion of either party or of the court, the court may order stricken from any pleading any insufficient defense. While a party's motion to strike must be made before the party files a responsive pleading, the court acting on its own initiative may order material stricken at any time. Thus, where the motion to strike is untimely, the court may yet strike an insufficient defense. 5A C. Wright and A. Miller, Federal Practice and Procedure § 1380 (2d ed. 1990).

"All well-pleaded facts are taken as admitted on a motion to strike." Kelly v. Kosuga, 358 U.S. 516, 79 S.Ct. 429, 3 L.Ed.2d 475 (1959). The motion to strike helps avoid a waste of resources by eliminating spurious issues before trial. Sidney v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983). However, the motion is not favored by courts because it is thought to be dilatory. United States v. 416.81 Acres of Land, 514 F.2d 627, 631 (7th Cir.1975). As to insufficient defenses, the prevailing view is that the district court has broad power and can strike any insufficient defense, including constitutional ones. Id. at 630 n. 3. However, a motion to strike an affirmative defense should only be granted if the affirmative defense is insufficient as a matter of law. See Memorex Corp. v. International Business Mach. Corp., 555 F.2d 1379 (9th Cir.1977).

IV. Analysis.

Because of the breadth of plaintiffs' motions, the following analysis is largely organized by topic.

A. Has Plaintiff Stated a Claim under CERCLA?

Plaintiff United States first moves for summary judgment on RP1-US and IMMI1-US, in which defendants assert that plaintiff has failed to state a claim upon which relief can be granted. Plaintiff California moves to strike IMMI1-CA, which...