ELR Citation: ELR 20288
No(s). 91-5118 (E.D. Pa. Jul 8, 1992)

The court holds that equitable considerations cannot be introduced into the liability phase of a government cost recovery action under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that the only defenses to liability in a §107(a) action are those enumerated in §107(b). The court holds that although equitable considerations might come into play in the damage allocation phase of a CERCLA action, introducing them into the liability phase of a CERCLA action is improper. Equitable considerations may not serve as defenses to liability under CERCLA, because the federal government asserts public rights and implements an important public policy, namely the cleanup of a hazardous landfill, when it initiates a cost recovery action. The court dismisses the defendants' counterclaims, which asserted that when the U.S. Environmental Protection Agency (EPA) took over the landfill to begin cleanup, it became an "owner or operator" within the meaning of CERCLA, and therefore, was subject to liability for any releases of hazardous substances that occurred during its tenure. Because the defendants have been unable to demonstrate that the United States waived its sovereign immunity. The court defers ruling on the defendants' recoupment claims until it is in a position to decide whether a showing of inconsistency with the national contingency plan (NCP) relieves the defendants from paying for the indirect and consequential costs of the inconsistency, and whether the defendants can show that EPA's actions were inconsistent with the NCP.

Counsel for Plaintiff
Nancy Flickinger, Robin L. Juni
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Kenneth J. Warren
Manko, Gold & Katcher
401 City Ave., Bala Cynwyd PA 19004
(215) 660-5700