The opinion of the court was delivered by: Judge Sylvia H. Rambo
The Commonwealth of Pennsylvania, Department of Environmental Protection, ("PADEP") filed a complaint, and then an amended complaint, seeking to recover from Defendant Lockheed Martin Corporation ("LMC") response costs incurred in the cleanup of Strontium-90, ("Sr-90"), a radioactive and hazardous nuclear byproduct material, at or from the Quehanna Wild Area Nuclear Site in the Quehanna Wild Area of the Moshannon State Forest in Clearfield County, Pennsylvania, (the "site"). (See Docs. 1, 3.) Defendant LMC's, predecessor, the Martin-Marietta Corporation, was the last known user of Sr-90 at the site.*fn1
PADEP's cost recovery claims arise from Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended 42 U.S.C. §§ 9601-9675, ("CERCLA"), and certain environmental statutes and common law of the Commonwealth of Pennsylvania, including the Hazardous Sites Cleanup Act, ("HSCA"), 35 P.S. §§ 6020.101-6020.1305; the Solid Waste Management Act, ("SWMA"), 35 P.S. §§ 6018.101-6018.1003; the Clean Streams Law, ("CSL"), 35 P.S. §§ 691.1-691.1001; and Section 1917-A of the Administrative Code of 1929, 71 P.S. § 510-17.
LMC filed a motion to dismiss PADEP's amended complaint, which motion was denied by this court in a memorandum and order dated February 1, 2010. (Doc. 28.) On February 18, 2010, LMC filed an answer to the amended complaint and two counterclaims against PADEP. (Doc. 30.) LMC's counterclaims assert that if it is held liable for PADEP's response costs associated with the remediation of the Sr-90 then it seeks contribution for those costs against PADEP. Specifically, LMC states that PADEP is liable under CERCLA pursuant to sections 107(a) and 113(f)(1), 42 U.S.C. §§ 9607(a) and 9613(f)(1), as well as under state law pursuant to the HSCA, 35 Pa. Cons. Stat. Ann. § 6020.705. On March 16, 2010, PADEP filed an Answer to LMC's counterclaim denying that it is liable for contribution under either under federal or state law.
In addition to its counterclaim against PADEP, LMC filed a Third-Party Complaint against the Commonwealth of Pennsylvania and another of its administrative agencies, the Department of Conservation and Natural Resources (collectively, "the Third-Party Defendants"). (Doc. 33.) In the Third-Party Complaint, LMC reiterates its position that it is not liable for the Sr-90 contamination at the site, and to the extent that the court finds that it is liable, the court should allocate the response costs among all responsible parties including PADEP and the Third-Party Defendants. These claims mirror those alleged in LMC's counterclaim in that LMC asserts that the Third-Party Defendants are liable pursuant to §§ 107(a) and 113(f)(1) of CERCLA, 42 U.S.C. §§ 9307(a) and 9613(f)(1), as well as under state law pursuant to the HSCA, 35 Pa. Const. Stat. Ann. § 6020.705.
In response to LMC's Third-Party Complaint, the Third-Party Defendants filed a motion to dismiss, (Doc. 49), in which they argue that LMC's claims must be dismissed either because they are immune from suit pursuant to the Eleventh Amendment or because they are immune from liability pursuant to state law. That motion has been fully briefed by the parties and is ripe for disposition by this court. For the reasons that follow, the court will grant the Third-Party Defendants' motion to dismiss the Third-Party Complaint because the court concludes that the Commonwealth of Pennsylvania has not waived its Eleventh Amendment immunity as to the claims brought by LMC in its Third-Party Complaint.
I. Legal Standard: Eleventh Amendment
It is axiomatic that a State's "immunity . . . from suit in federal courts is a fundamental aspect of state sovereignty." Lombardo v. Pa. Dep't of Pub. Welfare, 540 F.3d 190, 194 (3d Cir. 2008) (quoting N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 193 (2006).) This immunity is expressed in both the Eleventh Amendment, which grants a State immunity from suit in federal court by citizens of other states, as well as its own citizens, see Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 616 (2002), and in a State's own inherent sovereignty, which is expressed in state law. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 753-54 (2002) (stating that the Eleventh Amendment does not "explicitly memorializ[e] the full breadth of the sovereign immunity retained by the States when the Constitution was ratified," and that it "extends beyond the literal text of the Eleventh Amendment.")
As a general matter, under the Eleventh Amendment, a State cannot be sued by a private individual. See Hans v. Louisiana, 134 U.S. 1, 10 (1890). Furthermore, agencies, like PADEP and the DCNR, are entitled to immunity if they are agents or instrumentalities of the state. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). The parties do not dispute the both PADEP and DCNR were at all times acting on behalf of the Commonwealth of Pennsylvania.
There are three exceptions to Eleventh Amendment immunity: (1) Congress may abrogate the sovereign immunity of the states through statute; (2) a state may waive the immunity by consenting to suit; and (3) a federal court may enjoin a "state official" from violating federal law under the doctrine of Ex Parte Young. The first and third exceptions are inapplicable in the present case. LMC has not argued that Congress abrogated the States' immunity in CERCLA, nor could it,*fn2 and it is not seeking to enjoin any state official. Thus, the Commonwealth's Eleventh Amendment immunity is intact with regard to CERCLA actions absent a waiver of that immunity.
In its motion to dismiss LMC's Third-Party Complaint, the Third-Party Defendants argue that LMC's claims are barred by both the Eleventh Amendment and the Commonwealth's own separate sovereign immunity. Predictably, LMC argues that both immunities are inapplicable because the Commonwealth waived any immunity that it possessed when it chose to invoke the jurisdiction of the federal courts in filing this CERCLA action through PADEP.
The principle that a State can waive its Eleventh Amendment immunity by voluntarily invoking the jurisdiction of the federal courts, known as the voluntary invocation rule, emerged in early Supreme Court precedent. See Gardner v. New Jersey, 329 U.S. 565 (1947) (finding a waiver of Eleventh Amendment immunity where a State voluntarily appeared in bankruptcy court to file a claim against a common fund); Gunter v. Atl. Coast Line R.R. Co., 200 U.S. 273, 284 (1906) (stating generally that "where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment"); Clark v. Barnard, 108 U.S. 436 (1883) (holding that a State's voluntary intervention in a federal court action to assert its own claim constituted a waiver of its Eleventh Amendment immunity).
More recently, the voluntary invocation rule was examined by the Supreme Court in Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613 (2002). In Lapides, a professor employed by the Georgia state university system brought a lawsuit in Georgia state court against the State of Georgia and others alleging that the state officials improperly placed allegations of sexual harassment in his personnel files. The State defendants removed the case to federal court where they sought dismissal based upon, among other grounds, Eleventh Amendment immunity. The district court denied the State's motion to dismiss and found that the State had waived its Eleventh Amendment immunity by removing the case to federal court. After an appeal, the Court of Appeals for the Eleventh Circuit reversed the district court on the grounds that the official who sought ...