The opinion of the court was delivered by: SYLVIA H. RAMBO
In this action brought pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C. § 9607(a), the United States seeks to recover from Defendants costs expended by the Environmental Protection Agency (EPA) in responding to the contamination of the Keystone Sanitation Landfill Site up until September 27, 1990. The complaint also seeks a declaratory judgment as to the liability of the Defendants for response costs incurred by the United States in the future. The eleven Defendants, alleged to be potentially responsible parties (PRPs) under CERCLA, responded with a plethora of affirmative defenses and counterclaims. The court has addressed the affirmative defenses of all Defendants, and the equal protection counterclaim asserted by Kemper Industries, Inc., in memoranda dated June 10, 1994, and June 27, 1994. Now before the court is the motion of the United States to dismiss various other counterclaims filed by the Defendants.
Initially, Defendants asserted counterclaims under CERCLA, §§ 107 and 113, the theory of recoupment, state tort law, and the Pennsylvania Hazardous Sites Cleanup Act (HSCA). Subsequent to the filing of the motion, the Defendants voluntarily dismissed some of the counterclaims. The United States continues to seek dismissal of the counterclaims under CERCLA for judicial review of certain actions taken by the EPA, the HSCA, and recoupment. The specific counterclaims now remaining for the court's review are:
(1) C&J Clark America, Inc.: Counts III (recoupment) and IV (relief under HSCA § 705(a));
(2) The Esab Group: Count I (judicial review of the EPA's June 28, 1991 Unilateral Administrative Order ("UAO") and September 30, 1990 Record of Decision ("ROD")); and Count IV (judicial review of the EPA's rejection of Defendants' first remedial design work plan) (hereinafter "Defendant's first work plan");
(3) The Glenlyte Group, Inc.: Count I (judicial review of EPA's rejection of first work plan); and Count II (recoupment);
(4) Hanover Bronze and Aluminum Foundry, Inc.: Count I (judicial review of EPA's rejection of Defendant's first work plan); and Count II (recoupment);
(5) Kemper Industries, Inc.: Count II (judicial review of EPA'S rejection of Defendant's first work plan);
(6) Sheppard Company, Inc.: Counts III and IV (relief under HSCA §§ 702(a) and 705(a));
(7) SKF USA, Inc.: Count III (recoupment); Count IV (relief under HSCA § 705(a)); and Count V (judicial review of EPA's rejection of first work plan).
The statutory framework pertinent to this action was set forth in the court's memoranda of June 10, 1994, and June 27, 1994, and need not be recounted herein. Nor will the court belabor the legal issues raised by the parties in their briefing of the motion to dismiss. It is beyond dispute that the general rule of Eleventh Amendment sovereign immunity protects the United States from suit for acts taken in its sovereign capacity. The immunity can be waived by express consent only, and the terms of any consent define and limit the court's jurisdiction. United States v. Testan, 424 U.S. 392, 399, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976) (citation omitted). Courts are to recognize a waiver of sovereign immunity only if it has been unequivocally expressed, and must construe it strictly in favor of the United States. United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980); Library of Congress v. Shaw, 478 U.S. 310, 318, 92 L. Ed. 2d 250, 106 S. Ct. 2957 (1986).
CERCLA sets forth a limited waiver of immunity for actions taken by the EPA when it is acting in its sovereign capacity, as it unquestionably is in a CERCLA response action. United States v. Atlas Minerals & Chemicals, Inc., 797 F. Supp. 411, 419-21 (E.D. Pa. 1992). The statutory waiver is explicit. Section 120, 42 U.S.C. § 9620, provides that the United States and all of its agencies are subject to CERCLA, including § 107 liability. This waiver is limited to instances in which the United States has acted as a business, that is, as an owner, generator, or transporter of hazardous waste. Thus, if agencies and departments within the federal government dispose of waste at a site subject to a CERCLA clean-up action, courts appropriately permit contribution actions under § 113(f), in which the PRPs may assert § 107 claims against the United ...