challenge to the costs incurred and the actions undertaken pursuant to the cleanup effort must be made via a challenge to their consistency with the National Contingency Plan. On that basis, the Commonwealth's motion to dismiss the counterclaims asserted against it will be granted.
Rule 12(b) standards
The Commonwealth seeks dismissal of defendants' counterclaims under Rule 12(b)(6) based on an asserted failure to state a claim upon which relief can be granted. In deciding defendants' motion, we are "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant." Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). "In determining whether a claim should be dismissed under Rule 12(b)(6)," we look "only to the facts alleged in the complaint and its attachments without reference to other partes of the record." Id. Dismissal is not appropriate unless "it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id.
Grant of immunity to state governments
CERCLA expressly grants immunity to state and local governments from liability for actions "taken in response to an emergency created by the release or threatened release of a hazardous substance generated by or from a facility owned by another person." 42 U.S.C. § 9607(d)(2).
See generally: FMC Corp. v. United States, 29 F.3d 833 (3d Cir. 1994) (discussion of state government liability in dicta); United States v. Dart Industries, Inc., 847 F.2d 144 (4th Cir. 1988) (no liability on the part of South Carolina Department of Health and Environmental Control for its role in overseeing activities at an abandoned waste site); and United States v. New Castle County, 727 F. Supp. 854 (D.Del. 1989)
Acts undertaken "to ameliorate a dangerous situation that, but for the prior action of the generators and transporters of the hazardous waste, would not exist," do not subject the governmental entity involved, whether state or federal, to liability for cleanup costs. FMC Corp., supra, 29 F.3d at 841. Congress' essential goal of making those responsible for the problems caused by the disposal of toxic wastes bear the costs of and responsibility for remedying the dangerous conditions their conduct created would not be furthered by making the governmental entity who has undertaken cleanup efforts liable for acts done in the course of those efforts. Id. See also: Stilloe v. Almy Brothers, Inc., 782 F. Supp. 731, 735-36 (N.D.N.Y. 1992). Cf. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1199 (2nd Cir. 1992).
Imposing liability for negligence in carrying out cleanup operations would run counter to the statutory scheme of CERCLA and the policies it is intended to foster. "Allowing contribution counterclaims...would undermine Congress' intent to ensure that those who benefit financially from a commercial activity should internalize the health and environmental costs of that activity into the costs of doing business." United States v. Azrael, 765 F. Supp. 1239, 1245 (D.Md. 1991).
Although section 9607(d) allows for the imposition of liability against state or local governments for costs or damages incurred as a result of gross negligence or intentional misconduct by those entities, 42 U.S.C. § 9607(d)(2), there are no allegations to that effect in this case. See: record document nos. 81, 82 and 83, defendants' counterclaims.
Therefore, we reject defendants' contentions that a basis for liability exists against the Commonwealth for cleanup activities conducted or supervised by EPA or the Commonwealth at the site and grant the Commonwealth's motion to dismiss for reasons substantially similar to those supporting our dismissal of the counterclaims asserted against the EPA. Azrael, supra, 765 F. Supp. at 1245, citing Pennsylvania v. Union Gas Co., 491 U.S. 1, 105 L. Ed. 2d 1, 109 S. Ct. 2273 (1989).
Inconsistency with the National Contingency Plan
Again, defendants are not without redress for their contention that, to the extent it was involved in cleanup activities, the Commonwealth failed to carry out the cleanup operation properly and that its alleged errors increased response costs which defendants are now being asked to pay. Response costs are recoverable by the United States and by the Commonwealth only to the extent that the costs incurred are consistent with the NCP. CERCLA section 107(a)(4)(A) bars the EPA and, here, the Commonwealth, from recovering expenditures which are "inconsistent with the national contingency plan...." 42 U.S.C. § 9607(a)(4)(A).
Defendants can, therefore, in defense of the cost-recovery claims filed against them, assert inconsistency with the NCP of increased costs allegedly caused by errors of the Commonwealth or EPA. That procedure, not the assertion of counterclaims through attempts to characterize the Commonwealth as an owner operator of the cleanup site, is the proper method for challenging cleanup costs incurred. United States v. Western Processing Company, 761 F. Supp. 725, 729 (W.D.Wash. 1991). "Concerns about the propriety of the..response action should be addressed as part of a determination for consistency with the NCP." Azrael, supra, 765 F. Supp. at 1246. See also: United States v. Atlas Minerals and Chemicals, Inc., 797 F. Supp. 411, 419-20 (E.D.Pa. 1992) ("The sole way in which CERCLA defendants can challenge the propriety of the...response and remediation actions is by arguing, in the damages phase of a CERCLA case, that those actions were inconsistent with the NCP."); In re Paoli Railroad Yard PCB Litigation, 790 F. Supp. 94, 97 (E.D.Pa. 1992) ("It is clear from the statutory language that Congress envisioned that the propriety of cleanup conduct be judged solely by the 'not inconsistent' standard as part of EPA's cost recovery action."); and Azrael, supra, 765 F. Supp. at 1246.
For all of the above reasons, defendants' counterclaims against the Commonwealth will be dismissed.
James F. McClure, Jr.
United States District Judge
March 20, 1995
For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT:
1. The Commonwealth of Pennsylvania's motion to dismiss1a the counterclaims filed against it by defendants American Color and Chemical Corporation (American Color),2a Pfister Chemical, Inc. (Pfister)3a and Beazer East, Inc. (Beazer)4a is granted.
2. All counterclaims asserted by defendants in their answers to the intervenor complaint filed by the Commonwealth are dismissed.
3. The remaining outstanding motions will be addressed in a separate memorandum and order.
James F. McClure, Jr.
United States District Judge