ELR Citation: ELR 21016
No(s). S91-411M (N.D. Ind. Jan 22, 1992)

In a government cost recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA), the court holds that the defendant may raise the affirmative defenses of estoppel, release and/or waiver, and laches, even though they are not among the specific defenses enumerated in CERCLA §107(b). The court first holds that Federal Rule of Civil Procedure Rule 12(f) does not bar the court from deciding the merits of the motion to strike even if the motion is untimely, because Rule 12(f) allows the court on its own motion to strike matters in a pleading. The government served the motion on the defendant within the time limit, but was four days late in filing the motion with the court. The defendant did not suffer any prejudice because of the four-day delay. The court next holds that it cannot strike the equitable defenses that Walerko asserted simply because they are not specifically enumerated in CERCLA §107(b). The government has also sued under CERCLA §104(e) and RCRA §3008, and these provisions do not foreclose equitable defenses. The court next holds that, although the equitable defenses asserted rarely apply in suits against the government acting in its sovereign capacity, they are not foreclosed as a matter of law. Whether the government waived its claims or released the defendant from liability is a question of fact that cannot be answered on the face of the pleadings. The court further holds that it cannot strike the estoppel defense as insufficient as a matter of law. A defendant relying upon the estoppel defense faces a substantial burden, but nothing before the court conclusively forecloses an estoppel defense. Finally, the court holds that the defense of laches should not be stricken, because it is not clearly inadequate as a matter of law, and the Seventh Circuit has assumed that laches can be asserted against the government.

Counsel for Plaintiff
Clifford D. Johnson, Ass't U.S. Attorney
204 S. Main St., Rm. M01, South Bend IN 46601
(219) 236-8287

Counsel for Defendant
Michael A. Metz
Barnes & Thornburg
301 S. Main St., Ste. 305, Elkhart IN 46516
(219) 293-0681