ELR Citation: ELR 21584
No(s). 89-C-1802 (D. Colo. Jun 8, 1993)

The court holds that the United States stated a claim under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for recovery of response costs incurred as a result of the release or threatened release of hazardous substances at a mining site in Colorado. On the federal government's motion to strike affirmative defenses raised by the county that acquired the site, the court holds that the county's defense that the court lacks jurisdiction because the inclusion of the site on the national priorities list (NPL) was arbitrary and capricious is legally insufficient. The court next holds that the equitable defenses raised by the county are barred, because the defenses listed in CERCLA are exclusive. For the same reason, the court holds legally insufficient the defenses that the United States failed to join indispensable parties and any releases were de minimis. The court strikes the defenses that the government's response costs were not cost-effective, prudent, or reasonable and that there was no accounting, but denies the motion to strike the defenses that the U.S.' costs are inconsistent with the national contingency plan. The court denies the government's motion to strike defenses that the releases resulted from "acts of God" or acts or omissions of third parties over which the county had no control, because they present mixed questions of law and fact. The court also holds that a claim for recoupment due to an unlawful taking as a result of a remediation plan for the property is not a defense to CERCLA liability and should be filed as a counterclaim or independent action, and that in order to allege additional affirmative defenses raised by other defendants in response to the government's allegations, the county must seek leave of the court under Federal Rules of Civil Procedure 15.

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

Counsel for Defendants
Edward Mulhall Jr.
Delaney & Balcomb
818 Colorado Ave., P.O. Drawer 790, Glenwood Springs CO 81602
(303) 945-6546