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UNITED STATES v. AMERICAN COLOR & CHEM. CORP.

March 20, 1995

UNITED STATES OF AMERICA, Plaintiff
v.
AMERICAN COLOR and CHEMICAL CORPORATION, PFISTER CHEMICAL, INC. and BEAZER EAST, INC., Defendants



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 March 20, 1995

 BACKGROUND

 This is an action by the United States for reimbursement of response costs and for a declaratory judgment *fn1" 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. *fn2"

 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.

 In this action, the United States seeks reimbursement for 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), *fn3" Pfister Chemical, Inc. (Pfister) and Beazer East, Inc. (Beazer). *fn4" The United States also 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, *fn5" 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 (SSC's) between it and the United States. 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)

 Presently before the court is a motion *fn6" by the Commonwealth *fn7" to dismiss the counterclaims filed against it by defendants AC&C, *fn8" Beazer *fn9" and Pfister. *fn10" All three defendants assert identical counterclaims against the Commonwealth. *fn11"

 Defendants counterclaim against the Commonwealth on the basis of removal actions conducted at the site by the EPA pursuant to RODs I and II. Defendants assert that those acts give rise to liability against the Commonwealth because: 1) the Commonwealth is a "person" within the meaning of CERCLA section 101(21), 42 U.S.C. § 9601(21); 2) the Drake site and adjacent lands are a "facility" within the meaning of CERCLA section 101(9), 42 U.S.C. § 9601(9); 3) the AC&C property is a "facility" within the meaning of CERCLA section 101(9), 42 U.S.C. § 9601(9), from which there has been a release or threatened release of hazardous substances; 4) the Commonwealth is contractually obligated to pay the United States 10% of the cost of the remedial action, and 100% of all future operation and maintenance costs of the remedial action incurred in Phases I, II and III of the response action. *fn12"

 The Commonwealth moves to dismiss defendants' counterclaims for failure to state a claim upon which relief can be granted. *fn13" It contends that none of the claims asserted is viable since all rest on the same grounds as the counterclaims asserted against the United States, which were dismissed by this court in its order and memorandum dated June 2, 1994. *fn14"

 This court dismissed the counterclaims asserted against the United States on the ground that there was no waiver of sovereign immunity for acts carried out in conducting the cleanup of a hazardous site and further found that defendants' recourse for challenging the manner in which the cleanup was carried is limited to a challenge to the consistency of the costs incurred with the National Contingency Plan.

 In making that determination, we rejected arguments that liability could be imposed against the EPA for cleanup activities: 1) because such activities rendered it an owner operator of the facility under CERCLA section 107(a)(2); 2) because such activities rendered it a transporter generator of hazardous substances for CERCLA purposes; 3) under a theory of contribution or indemnification under CERCLA section 113, 42 U.S.C. § 9613(f)(1); 4) under a theory of recoupment; and 5) under a theory of conversion asserted by AC&C under CERCLA section 107(a) based on an allegation that 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." (Record document no. 24, PP 38-44).

 For similar reasons, we find that the counterclaims asserted against the Commonwealth are likewise barred, and that defendants' 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 ...


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