been held by other courts to be insufficient for failure to conform with the statutory requirements of § 107(b)(3). See Kelly, 714 F. Supp. at 1446; see also United States v. B.R. Mackay & Sons, Inc., 13 Chem. Waste Lit. Rep. 253, 258 (N.D.Ill. 1986). The court, therefore, agrees with the Government's contention that defendant Marisol's seventh defense must be stricken.
Marisol's tenth and eleventh defenses must also fail since they suffer from the same deficiency as the seventh defense. Namely, they do not conform with the statutory requirements of 107(b)(3).
Marisol's tenth defense states that it reasonably relied upon authorized persons to dispose of its waste products. See document 10 of record at 11. Once again Marisol attempts to assert a third party defense that does not comport with the statutory requirements of § 107(b)(3). Marisol's tenth defense will, therefore, be stricken.
As to its eleventh defense, Marisol asserts that the release of hazardous substances and resulting harm alleged in the complaint were caused by superseding, intervening, illegal, criminal, or tortious acts of third parties over whom it had no control. As with its seventh and tenth defenses, this attempt to plead a third party defense does not allege the statutory requirements of § 107(b)(3) and, therefore, must be stricken.
In arguing that its seventh, tenth, and eleventh defenses should not be stricken, Marisol argues that they present questions which clearly involve substantial issue of law and fact. See document 52 of record at 23. In support of this argument, Marisol cites United States v. Maryland Bank & Trust Co., 632 F. Supp. 573 (D.Md. 1986). As the Government points out, however, Maryland Bank dealt only with the question of whether there was sufficient factual evidence to support a third party defense allowed under § 107(b)(3). See id. at 581-82 (denying the Government's motion for summary judgment on the defendant's § 107(b)(3) defense).
In the instant case, Marisol, in its sixth defense, raises a § 107(b)(3) defense. See document 10 of record at 10. Nothing the court does today will in any way inhibit or prevent Marisol from developing a factual record in support of its properly raised § 107(b)(3) defense.
4. Defendants Exercised Due Care and Complied with the Law and Industry Practice and the United States was Negligent
Each of the answering defendants asserts that it acted with due care and complied with all statutory, regulatory and common law requirements regarding waste disposal.
Additionally, Marisol asserts that in disposing of its waste, it took precautions in accordance with the state of the art, trade customs and industry practice.
Defendants Inland, American Cyanamid, and Smithkline also raise the defense that the United States was contributorily negligent in causing the endangerment and/or assumed the risk of the consequences of its conduct.
The Government contends that because CERCLA imposes a scheme of strict liability, these defenses must be stricken. See document 40 of record at 24-28 and document 53 at 35-37.
It is clear that the majority of courts who have considered the issue have held that CERCLA imposes strict liability.
Under CERCLA's strict liability scheme with its limited affirmative defenses, claims by defendants that they were not negligent or that they exercised due care cannot be used to avoid liability. United States v. Conservation Chemical Co., 619 F. Supp. 162, 204 (M.D.Mo. 1985). Indeed, the question of a defendant's use of due care is relevant only to the extent that it can be used as a component of the statutory defense provided for by § 107(b)(3).
Accordingly, the court will strike the defenses enumerated above in which the defendants claim that they exercised due care or that they complied with the law or with industry practice. Based upon the same reasoning, the court will also strike the defenses that relate to contributory negligence and/or assumption of the risk on the Government's part.
5. No Direct or Proximate Cause
Each answering defendant avers that its conduct was not the cause in fact or the proximate cause of the releases or injuries alleged in the complaint.
In support of its motion to strike these defenses, the Government argues that CERCLA establishes liability without regard to traditional tort notions of causation and, therefore, defenses based upon lack of causation are insufficient to withstand a motion to strike. See document 53 of record at 23-28.
In Monsanto, the Fourth Circuit addressed the issue of causation in the following manner:
As ultimately enacted after House and Senate compromise, however, CERCLA "imposed liability on classes of persons without reference to whether they caused or contributed to the release or threat of release." . . . The legislature thus eliminated the element of causation from the plaintiff's liability case.
Monsanto, 858 F.2d at 170 n. 17 (citing Shore Realty, 759 F.2d at 1044). Thus, traditional tort notions such as proximate cause are inapplicable to actions brought under § 107(a) of CERCLA. United States v. Bliss, 667 F. Supp. 1298, 1309 (E.D. Mo. 1987).
The minimal causal nexus required by CERCLA is met when the plaintiff proves by a preponderance of the evidence that the defendant's hazardous waste was deposited at the site and that the substances contained in the defendants' waste were also found at the site. Violet v. Picillo, 648 F. Supp. 1283, 1292 (D.R.I. 1986) (citing inter alia., United States v. Wade, 577 F. Supp. 1326, 1333 (E.D.Pa. 1983)). Indeed, to require the plaintiff to "fingerprint" wastes -- i.e., to tie specific wastes to specific defendants -- would place too great a burden on the cost recovery actions, eviscerating the statute and defeating congressional intent. Wade, 577 F. Supp. at 1332. See also Developments -- Toxic Waste Litigation, 99 Harv. L. Rev. 1458, 1548 (1986).
Thus, none of the instant defendants can escape liability under § 107(a) of CERCLA by arguing that, even though its hazardous waste was dumped at the Site, it was not the direct or proximate cause of the releases or injuries alleged in the complaint. The Government's motion to strike such defenses will, therefore, be granted.
6. The Government's Failure to Enforce Environmental Laws, Comply with CERCLA, Provide Notice, Mitigate Damages, and Enter into a Contract with Pennsylvania
Each of the defendants asserts defenses based upon the Government's alleged failure to take various statutory or procedural steps before bringing the instant action. Inland, American Cyanamid, and Smithkline claim that the Government generally failed to enforce its environmental laws and protect the environment.
American Cyanamid asserts that the Government itself failed to conform its actions to the requirements of CERCLA.
Inland, American Cyanamid, and Smithkline further allege that they had no knowledge of the endangerment or the related response costs incurred by the Government and that the Government failed to provide proper notice to them before undertaking the response actions.
Additionally, all four answering defendants aver that the Government failed to take proper steps to mitigate damages.
Finally, defendants Inland, American Cyanamid, and Smithkline claim that the Government has not averred that it entered into a contract or cooperation agreement with the Commonwealth of Pennsylvania pursuant to § 104(c)(3) of CERCLA.
See 42 U.S.C. § 9604(c)(3).
The Government contends that these defenses must be stricken because CERCLA imposes no statutory or procedural prerequisites to the commencement of an action under § 107. See document 40 of record at 30-36 and document 53 of record at 28-32. Moreover, the Government's argument continues, there is no duty upon the Government to mitigate damages as it is authorized by CERCLA to recover all response costs not inconsistent with the National Contingency Plan (NCP). See id.
As the plain language of § 107 of CERCLA states, liability for response costs is imposed upon those parties identified in § 107(a) "notwithstanding any other provision or rule of law". 42 U.S.C. § 9607. Thus, there are no statutory or procedural prerequisites to a cost recovery action under § 107(a). Kelly, 714 F. Supp. at 1446-47; see also United States v. Miami Drum Services, Inc., 25 Env't Rep. Cas. 1469, 1479 (S.D.Fla. 1986); Wade, 577 F. Supp. at 1336 (citing United States v. Reilly Tar and Chemical Corp., 546 F. Supp. 1100, 1118 (D. Minn. 1982)).
Accordingly, any defenses offered by the instant defendants which argues that liability for response costs may be excused because of the Government's failure to take certain statutory or procedural steps before bringing this action, are insufficient as a matter of law. These defenses include, inter. alia, the claims that the defendants were entitled to notice from the Government under § 104 of CERCLA and that the Government failed to enter into a contract or cooperative agreement with the Commonwealth of Pennsylvania pursuant to § 104(c)(3) of CERCLA. The court will, therefore, grant the Government's motion to strike these defenses.
With respect to the claims of the defendants that they are not liable for response costs because the Government failed to mitigate damages, the court finds no persuasive authority which imposes a legal duty upon the Government to mitigate damages in a CERCLA action. But see United States v. Hardage, 116 F.R.D. 460, 466-67 (W.D.Okla. 1987). Conversely, the court concludes that a finding that § 107 imposes no duty to mitigate costs on the Government would be consistent with the broad and independent liability scheme inherent in § 107. See Kelly 714 F. Supp. at 1451. The court will, therefore, grant the Government's motion to strike this defense.
7. Joint and Several Liability Not Proper
Defendants Inland, American Cyanamid, and Smithkline assert that their liability should be proportionate to their contribution to the endangerment and costs, taking into account the percentage of total volume of materials disposed of at the site, the nature and relative toxicity of the materials and the relative contributions of the other defendants.
These three defendants also contend that the response actions taken by the Government were unrelated to the defendant's particular waste,
and that the imposition of joint and several liability is not proper in this case under CERCLA.
The Government argues that these defenses are insufficient as a matter of law because CERCLA imposes joint and several liability subject only to the limited defense of divisibility of harm. See document 40 of record at 36-40 and document 53 of record at 12-13.
Courts have consistently held that except where harm is divisible, liability under CERCLA is joint and several. Kelley, 714 F. Supp. at 1448, n. 6 ("the courts have uniformly agreed that although the phrase 'joint and several liability' does not appear on CERCLA's face, Congress intended the doctrine be applied in appropriate circumstances." . . .). Thus, joint and several liability under CERCLA is appropriate where traditional and evolving principles of common law would require it. Monsanto, 858 F.2d at 171-172.
Accordingly, as the Government freely admits, the joint and several liability imposed by CERCLA is subject to a limited defense based upon the common law doctrine of divisibility of harm. The burden of demonstrating that the harm suffered is, in fact, divisible, and that, therefore, joint and several liability does not apply, rests with the defendants. Kelley, 714 F. Supp. at 1448 (citing, inter alia, United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 1396 (D.N.H. 1985)).
Under common law rules, when two or more persons act independently to cause a single harm for which there is a reasonable basis of apportionment according to the contribution of each, each is held liable only for the portion of the harm that he causes. Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260-61 n. 8, 61 L. Ed. 2d 521, 99 S. Ct. 2753 (1979). When such persons cause a single and indivisible harm, however, they are held liable jointly and severally for the entire harm. Id. (citing Restatement (Second) of Torts § 433A (1965)). These principles have been held to represent the correct and uniform rules applicable to CERCLA cases. Monsanto, 858 F.2d at 171-172.
The court believes that the defenses challenged here can fairly be read as alleging divisibility of harm. Thus, the court feels that the defendants are at the very least entitled to conduct some discovery on these defenses. The Government's motion to strike these defenses is, therefore, denied.
8. Waste is De Minimis or Not Hazardous
Defendants Inland and Smithkline assert that the toxicity and volume of waste which they brought to the Site is de minimis when compared to that of other parties.
Additionally several defendants argue that some or all materials disposed of at the Site did not contain hazardous substances as defined under CERCLA.
The Government maintains that because CERCLA makes no provision for a de minimis defense to liability, those defenses must be stricken as a matter of law. See document 40 of record at 41-43 and document 53 of record at 18-23.
The court agrees with the Government's contention that there is no de minimis defense to liability under CERCLA. Colorado v. Idarado Mining Co., 707 F. Supp. 1227, 1243 (D. Colo. 1989) (citing Conservation Chemical Co., 619 F. Supp. 162). Nevertheless, as several courts have pointed out, the question of the relative contribution of a particular defendant to a waste site may impact upon the issue of joint and several liability. Violet, 648 F. Supp. at 1287 (citing Idaho v. Bunker Hill Co., 635 F. Supp. 665, 677 (D. Idaho 1986)); see also Wade, 577 F. Supp. at 1341 (". . . a defendant whose sole contribution to a hazardous waste dump site was a copper penny would not be responsible for the entire cost of cleaning up the site.")
Thus, to the extent that the challenged defenses can be read as alleging divisibility of harm, the defendants should be allowed to develop a factual record to support them. The court will, accordingly, deny the Government's request to strike these defenses.
9. Failure to Join a Necessary or Indispensable Party
Each of the answering defendants avers that the Government has failed to join necessary or indispensable parties.
The Government argues that because liability under CERCLA is joint and several, these defenses are insufficient as a matter of law and must be stricken. See document 40 of record at 44-46 and document 53 of record at 38-39.
As discussed above, liability under CERCLA is joint and several. Kelly, 714 F. Supp. at 1448, n. 6. In a case in which two or more parties are jointly and severally liable, the plaintiff need not sue and join all those potentially liable. Id. (citing, inter alia, United States v. Dickerson, 640 F. Supp. 448, 450 (D.Md. 1986)).
As the Dickerson court stated:
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.
640 F. Supp. at 450. This court, like the court in Kelly, agrees with the weight of authority allowing the Government wide discretion when choosing among joint tortfeasors. Kelly, 714 F. Supp. at 1450.
In United States v. A & F Materials Co., Inc., 578 F. Supp. 1249 (S.D.Ill. 1984) and United States v. Conservation Chemical, 589 F. Supp. 59 (W.D.Mo. 1984) courts dealing with this issue followed the Advisory Committee Note to Rule 19 of the Federal Rules of Civil Procedure which deals with necessary and indispensable parties. The Note states that Rule 19 "is not at variance with the settled authorities holding that a tortfeasor with the usual 'joint and several' liability is merely a permissive party to an action against another with like liability . . . Joinder of these tortfeasors continues to be regulated by Rule 20; compare Rule 14 on third-party practice." Advisory Committee Notes 39 F.R.D. 69, 91 (1966).
Moreover, as the Government points out in its supporting brief, even if the defendants can establish that joint and several liability should not be imposed, they will not be prejudiced by the absence of other potentially liable parties. See document 40 at 45. As the A & F Materials court observed:
If [defendant] can establish that its contribution to the injury is divisible and capable of apportionment, it will not run the risk of multiple liability. Further, [defendant] can protect itself through the impleader provision of Rule 14.