The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
This is an action by the United States for reimbursement of response costs and for a declaratory judgment
on liability pursuant to sections 107 and 113(g)(2) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9607 (a) and 9613(g)(2), in connection with the Drake Chemical Superfund Site (the Drake site or the site) and the American Color and Chemical facility (the AC&C facility or the site) located in Lock Haven, Clinton County, Pennsylvania.
The Environmental Protection Agency (EPA) began cleanup efforts at the site in February, 1982. The Drake site was placed on the National Priorities List (NPL) in 1983 pursuant to section 105 of CERCLA, 42 U.S.C. § 9605. The NPL identifies facilities nationwide at which the release or threatened release of hazardous substances poses a serious threat to the public health and the environment.
The United States is now seeking reimbursement of the costs it incurred in responding to the release of hazardous substances at the site from owner operators allegedly liable as responsible parties under section 9607(a), namely American Color and Chemical Corporation (AC&C),
Pfister Chemical, Inc. (Pfister) and Beazer East, Inc. (Beazer).
The United States seeks to recover expenses which it has incurred and will incur in the future in cleanup efforts. The Commonwealth of Pennsylvania was granted leave to intervene as a plaintiff, Fed. R. Civ. P. 24, to recover those costs which it is obligated to pay, and has paid, under section 104 of CERCLA, 42 U.S.C. § 9604 and pursuant to three Superfund State Contracts between it and EPA. The Commonwealth is obligated to pay 10% of the cost of the remedial action, and 100% of all future operation and maintenance costs of the remedial action.
EPA's involvement with the Drake site began in 1980. Investigations conducted by, and under the direction of, EPA revealed contaminated surface water, groundwater and soil. EPA conducted a Remedial Investigation Feasibility Study (Phase I RI FS) to determine the nature and extent of contamination of a leachate stream, leachate lagoons, and nearby Bald Eagle Creek, and to assess alternatives for remediation. EPA issued the first record of decision (ROD I) for the remediation of the leachate stream in September, 1984. Work under ROD I was completed in 1987. A second RI FS (Phase II RI FS) conducted to determine the nature and extent of contamination of buildings, lined lagoons, and other structures at the Drake site was completed in March, 1986. ROD II was issued in May, 1986 for the remediation of those structures. That work is now, also, completed. (Record Document No. 56 at p. 5)
Following completion of the work required under RODs I and II, EPA began work on a third RI FS (Phase III RI FS) to determine the extent of contamination in soils and sediment at the site. Results from that analysis were interpreted to indicate that contaminants were distributed throughout the site, and that contamination had leached through the layers of soil and sludge to the groundwater table. On the basis of these findings, EPA determined in a third ROD (ROD III) issued September 29, 1988, that remedial action in the form of incineration of the entire 12.5 acre site is necessary, and has received bids for the project. The EPA proposes to incinerate the soil down to groundwater, to depths averaging more than 12 feet. The project is estimated to take 3 to 5 years to complete at a cost of $ 123 million.
Before the court is a motion by the United States to dismiss the counterclaims filed against it by defendants AC&C, Beazer and Pfister
in which the Commonwealth joins.
AC&C and Beazer assert four counterclaims which are stated in a joint amended counterclaim, filed April 12, 1993.
Pfister subsequently amended its answer to assert three of the four counterclaims asserted jointly by AC&C and Beazer.
AC&C and Beazer counterclaim on the basis of: 1) the government's "emergency removal action" conducted at the site in 1987, the "leachate stream remediation project" conducted at the site in 1987 pursuant to ROD I and the project for "remediating the buildings, lined lagoons and all other structures" undertaken at the site pursuant to ROD II. Defendants assert that those actions give rise to liability: 1) under CERCLA section 107, since the United States was acting as an owner operator in conducting those operations; 2) under CERCLA section 113, 42 U.S.C. § 9613 for contribution since the United States is partially responsible for the response costs which it seeks to recover from the defendants; 3) under a right of recoupment or setoff, since the United States acted with negligence, gross negligence, and or willful misconduct and was carrying out abnormally dangerous activities when it incurred the response costs which it now seeks to recover from defendants; and 4) under CERCLA section 107(a), since the United States "converted property of AC&C to its use" while conducting the cleanup and violated the constitution in carrying out an "illegal taking or conversion or trespass" making it responsible "for defensive setoff of its claims here, [and] to the extent any award is made to the United States, as a recoupment in favor of AC&C." (Record document no. 24, PP 38-44).
Pfister asserts counterclaims: 1) under CERCLA section 107(a)(2) based on its contention that the actions taken by the United States pursuant to RODS I and II rendered it an operator of the site for section 107 purposes; 2) under CERCLA section 107(a)(4) based on its contention that in carrying out remedial measures the United States disposed of and transported, or arranged for the transportation of hazardous substances onto the site. It also asserts a claim for contribution under CERCLA section 113 for response costs incurred and yet to be incurred in connection with the site and a claim for recoupment or setoff based on the United States' alleged breach of duties owed to Pfister and harm allegedly caused to Pfister as a result of its alleged negligence, gross negligence, willful misconduct, or abnormally dangerous activities. (Record document no. 26.)
The United States has moved to dismiss all counterclaims asserted for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted.
The basis for the United States' motion is its contention that sovereign immunity has not been waived for EPA activities conducted in connection with a cleanup site. The United States contends that defendants' only recourse is to challenge its actions at the cleanup site as inconsistent with the National Contingency Plan.
The United States seeks dismissal of defendants' counterclaims and claims for recoupment and contribution under both Rule 12(b)(1) based on an asserted lack of subject matter jurisdiction and Rule 12(b)(6) based on an asserted failure to state a claim upon which relief can be granted.
Under a Rule 12(b)(6) motion, a complaint may not be dismissed for failure to state a claim upon which relief can be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The court must accept all material allegations in the complaint as true and construe them in the light most favorable to the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Johnsrud v. Carter, 620 F.2d 29 (3d. Cir. 1980); and Truhe v. Rupell, 641 F. Supp. 57, 58 (M.D.Pa. 1985) (Rambo, J.). Although the complaint is to be liberally construed in favor of the plaintiff (See: Fed.R.Civ. 8(f)), the court does not have to accept every allegation it contains as true. Conclusory allegations of law, unsupported conclusions and unwarranted inferences need not be accepted as true. Conley, supra, 355 U.S. at 45-46.