ELR Citation: ELR 20130
No(s). 4:CV-92-1352 (M.D. Pa. Jun 2, 1994)

The court holds that absent a waiver of sovereign immunity, it lacks subject matter jurisdiction over defendants' counterclaims in the U.S. government's action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recover response costs the government incurred at two sites in Pennsylvania. The court first holds that the government's cleanup operations do not render it subject to owner/operator liability under CERCLA §107(a)(2). The government did not waive its sovereign immunity when it cleaned up the sites, because it acted in its regulatory capacity rather than as a business. The court holds that the government's cleanup activities also did not render it liable under §107 as a transporter or generator of hazardous waste, because it acted in its regulatory capacity when it cleaned up the sites and so did not waive its sovereign immunity. The court next rejects defendants' counterclaim for contribution under CERCLA §113. CERCLA authorizes contribution actions only against liable parties, and the government is not a liable party at those sites. The court next dismisses defendants' recoupment claims because the government's claims and defendants' counterclaims do not arise out of the same event or occurrence. The government's claims arise from the release of hazardous substances at the site before 1980, whereas defendants' claims are based on alleged governmental negligence during the government's cleanup, which occurred after 1980. Moreover, the claims and counterclaims do not depend on the same evidence or raise the same issues. Addressing defendants' claims against that the government converted defendants' property and committed an illegal taking while conducting the cleanup, the court holds that sovereign immunity bars defendants' claim to the extent that it is based on the government's alleged liability under §107. And to the extent that defendants assert a Fifth Amendment taking claim, their claim may not serve as a defense to the government's CERCLA claims, because such a claim is not included in §107(b)'s list of available defenses.

[A related decision is published at 24 ELR 20476.]

Counsel for Plaintiff
Timothy Burns
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Robert L. Collings, Frank M. Thomas Jr.
Morgan, Lewis & Bockius
2000 One Logan Sq., Philadelphia PA 19103
(215) 963-5000