US v. Kramer

Decision Date08 February 1991
Docket NumberCiv. A. No. 89-4340(JFG).
Citation757 F. Supp. 397
PartiesUNITED STATES of America, Plaintiff, v. Helen KRAMER, et al., Defendants. v. AMERICAN CYANAMID COMPANY, et al., Third Party Plaintiffs, v. A. MARIANNI'S SONS, INC., et al., Third Party Defendants.
CourtU.S. District Court — District of New Jersey






United States Dept. of Justice, Environment & Natural Resources Div. by Bernard P. Bell, Washington, D.C., U.S.E.P.A., Office of Regional Counsel by Rudolph S. Perez, and U.S. Atty. by Louis Bizzarri, Asst. U.S. Atty., Camden, N.J., for plaintiff, U.S.

Podvey, Sachs, Meanor & Catenacci by H. Curtis Meanor, Newark, N.J., and Shea & Gould by Norman W. Bernstein, New York City, for defendant, UNISYS Corp.

Connell, Foley & Geiser by Frank A. Lattal, Roseland, N.J., and Sidley & Austin by Langley R. Shook, Washington, D.C., for defendant, W.R. Grace & Co.-Conn.

Levin & Hluchan by Glenn A. Harris, Marlton, N.J., for defendant Atochem, Inc., and American Nat. Can Co.

Brown and Connery by Jane A. Lorber, Westmont, N.J., and Reed, Smith, Shaw & McClay by Louis A. Naugle, Pittsburgh, Pa., for defendant, NVF Co., Inc.

Lowenstein, Sandler, Kohl, Fisher & Boylan by Richard F. Ricci, Roseland, N.J., for defendant, Olin Corp.

Deasey, Mahoney & Bender, Cherry Hill, N.J., for defendant, General Metalcraft, Inc.

Picco, Mack, Kennedy, Jaffe, Perrella & Yoskin by Kenneth H. Mack, Trenton, N.J. and Morgan, Lewis & Bockius by Denis V. Brenan, Michael R. Dillon, Kathleen R. Welsh, Philadelphia, Pa., for defendant, ICI Americas Inc.

Pitney, Hardin, Kipp & Szuch by William Hyatt, David W. Payne, Morristown, N.J., for defendant, American Cyanamid Co., Continental Can Co., E.I. DuPont de Nemours & Co., and Rohm and Haas Co.

Sive, Paget & Riesel, P.C. by Pamela Esterman, New York City, for defendant, N.L. Industries.

Crummy, Del Deo, Dolan, Griffinger & Vecchione by Ruth V. Rosenberg, Newark, N.J., for defendant, Cole Office Environments, Div. of Joyce Intern., Inc.

Archer & Greiner by Christopher R. Gibson, Haddonfield, N.J., for defendants, Morton Intern. Inc. and Bridgestone/Firestone, Inc.

Duane, Morris & Heckscher by Seth V.D.H. Colley, Medford, N.J., for defendant, The Gilbert Spruance Co.

Wilson, Elser, Moskowitz, Edelman & Dicker by Joseph T. Walsh, III, Newark, N.J., for defendant, Albert J. Mitchell.

Blackburn, Michelman & Tyndall by David F. Michelman, Cherry Hill, N.J., for defendant, Globe Disposal Co. Riker, Danzig, Scherer, Hyland & Perretti by Dennis J. Krumholz, Andrew J. Perel, Morristown, N.J., for defendant, Nabisco, Inc.

Schnader, Harrison, Segal & Lewis by Marianne E. Brown, David G. Battis, James W. Gicking, Philadelphia, Pa., for defendant, The Lehigh Press, Inc.

Robinson, St. John & Wayne by Lisa Agresti Carey, Newark, N.J., for defendant, Helen Kramer.

Michael N. Becci, Associate Corporate Counsel, Newton, Pa., for third party defendant, Standard Pressed Steel Co.

Fox and Fox by Gabriel H. Halpern, Newark, N.J., for third party defendant, Reagent Chemical & Research, Inc.

Katzenbach, Gildea & Rudner by Ezra D. Rosenberg, Lawrenceville, N.J., for third party defendant, Boeing Co., Vertol Div.

Caplan & Luber by Steven N. Yermish, Cherry Hill, N.J., for third party defendants, Simon Wrecking Co., Inc. and Mid-State Trading Co.

De Marco & Fiore, Hammonton, N.J., for third party defendant, United Asphalt Co., Inc.

Riesenburger & Kizner, Vineland, N.J., for defendant and third party plaintiffs, A. Marianni's Sons, Inc.

Durkin & Durkin by Thomas E. Durkin, Jr., Dennis A. Durkin, Newark, N.J., for third party defendant, Mayco Oil & Chemical Co.

Manta and Welge by Joel Schneider, Cherry Hill, N.J., for defendant, Rollins Environmental Services, (NJ) Inc.

Hannoch Weisman by A. Patrick Nucciarone, Roseland, N.J., for third party defendant, Bessemer (Kingsland).


GERRY, Chief Judge:

This matter is before the court on plaintiff's Rule 12(f) motion to strike approximately 200 of nearly 300 affirmative defenses set forth in the answers of 16 of the now 29 defendants. Plaintiff, United States ("the Government"), brought this case pursuant to section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607, to recover response costs expended at the Helen Kramer Landfill ("the Site") in Mantua, New Jersey. To narrow the issues and reduce the time and expense of discovery, the Government moves to strike all defenses other than those specified by section 107(b), because section 107(a) restricts defendants to the three section 107(b) defenses, making all other affirmative defenses legally insufficient.

The 16 defendants1 whose affirmative defenses are at issue have filed a joint memorandum opposing the striking of their equitable and constitutional defenses.2 They argue first that constitutional defenses may always be asserted and cannot be cut off by statute. Second, because CERCLA must be read as a whole and all of its provisions given effect, defenses are available which arise under those sections of CERCLA and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., that are necessary to the implementation of section 107.3 Third, defendants should be permitted to assert all the defenses that courts have held to be relevant to any CERCLA joint and several liability determination.

Moreover, defendants assert that they intend to assert a counterclaim against the Government, should discovery reveal that the Government itself was a significant generator of hazardous substances at the Site. Such a counterclaim, defendants argue, will change the character of the case from a section 107(a) collection action to "a hybrid which possesses features of both CERCLA Sections 107 and 113 ... with a sufficient Section 113 equitable allocation component to allow Defendants to plead equitable defenses." Defendants' Joint Supplemental Memo at 2.4

At oral argument on September 7, 1990, defendants argued that the outcome of the Government's motion to strike non-107(b) affirmative defenses makes no practical difference to the posture of the case, because if the court strikes the defenses, the same arguments will be raised by defendants in their section 113 counterclaims for contribution, brought simultaneously in this suit with the Government's section 107 claim. The Government responded that "the very real and very practical difference" arises on a motion for summary judgment, because a counterclaim is not a defense to liability while affirmative defenses are. Transcript of Oral Argument on September 7, 1990 ("Tr.") at 30, 8-13.5

Were the court to strike the affirmative defenses, the likely practical consequence would be that the Government would be prepared to move for summary judgment on its section 107 claim well before defendants were ready to so move on their section 113 counterclaims. Defendants could be found jointly and severally liable for all response costs long before they would be ready to prove that other potentially responsible parties ("PRPs") — including perhaps the Government itself — were liable for part of those costs. Thus, as the Government argues, whether defendants' affirmative defenses remain part of the Government's section 107(a) claim, or are stricken now and revived later as part of defendants' section 113(f)(2) counterclaims, "is not an artificial distinction, it's a distinction with a very real difference." Tr. 30, 13-14.

For the following reasons we will grant plaintiff's motion and strike all the affirmative defenses before us, with the exception of defenses alleging divisibility of the harm as they pertain to joint and several liability.6


The Helen Kramer Landfill is an inactive landfill in Mantua, New Jersey. From approximately 1963 to 1981, the 77-acre site was used for the disposal of municipal garbage and industrial waste. The State of New Jersey revoked the landfill registration in early 1981, and on March 3, 1981, a New Jersey state court ordered the landfill to cease operations.

On September 8, 1983, the Environmental Protection Agency ("EPA") placed the Helen Kramer Landfill on the National Priorities List ("NPL"), a list of the nation's most threatening hazardous waste sites. It now ranks fourth on that list. 42 U.S.C. § 9605(a); 40 C.F.R. Part 300, Appendix B.

Pursuant to section 104 of CERCLA, 42 U.S.C. § 9604, EPA conducted a Remedial Investigation and Feasibility Study ("RI/FS") from July 1983 until September 1985 to investigate contamination at the Site, at an alleged cost of over $2 million.

On October 16, 1989, plaintiff filed a complaint against 22 defendants, asserting claims under section 107 CERCLA, 42 U.S.C. § 9601 et seq. The complaint was amended on May 8, 1990 to name additional defendants and change the language regarding the declaratory judgment sought. The first amended complaint ("Am.Comp.") names 29 defendants and seeks: (1) a judgment against all defendants, jointly and severally, for all response costs7 incurred by plaintiff at the Site (alleged to be already at least $4.6 million);8 (2) a declaratory judgment that defendants are jointly and severally liable for all future response costs arising from releases and threatened releases of hazardous substances9 at the Site, pursuant to section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2); and (3) an award of attorneys' fees and costs.

The amended complaint alleges, among other things, that the 16 defendants whose affirmative defenses are at issue on this motion are liable under section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3), as persons who arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances at the Site, within the meaning of section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3). Further, defendants...

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