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United States v. Hardage

Citation: 17 ELR 20738
No. No. CIV-86-1401-W, 116 F.R.D. 460/26 ERC 1049/(W.D. Okla., 02/25/1987) Motion to dismiss affirmative defenses denied

The court declines to dismiss 33 affirmative defenses in an action brought under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 106 and Resource Conservation and Recovery Act (RCRA) § 7003. The court initially observes that motions to strike defenses under Federal Rule of Civil Procedure 12(f) are drastic remedies and must not be granted unless, as a matter of law, the defense cannot succeed under any circumstances and the moving party can demonstrate that it will be prejudiced significantly unless the defenses are struck from the pleadings. The court holds that defenses to CERCLA § 106 and RCRA § 7003 actions are not limited to the defenses found in CERCLA § 107(b). Even if CERCLA imposes strict liability, legal or equitable defenses may be raised for other purposes in connection with the statute's enforcement or interpretation. CERCLA § 106(a) provides that a court may consider equities of the case when deciding what relief to grant.

The court declines to strike the defenses contrary to the principle of joint and several liability. CERCLA's legislative history indicates that Congress wished to avoid mandatory joint and several liability. While joint and several liability may be imposed where the harm is single and indivisible, defendants must be allowed to demonstrate divisibility of the harm, and the court may apportion damages according to the parties' degree of involvement and care exercised.

Certain defenses also raise issues of fact, which preclude dismissal at this time. The court declines to strike the defense of lack of proximate cause. RCRA § 7003 liability requires that the government establish that hazardous substances disposed of by each defendant were present at the site, and that the substances may have contributed to a situation that may now present imminent or substantial endangerment. The court notes that defenses relating to government delay and failure to follow required procedures must be considered when evaluating damages. The court declines to strike a statute of limitations defense, since it refuses to find that neither an explicit statute of limitations nor the doctrine of laches applies to CERCLA § 106.

[Related decisions appear at 13 ELR 20188, 17 ELR 20242, and 17 ELR 20741. The government's complaint is digested at ELR PEND. LIT. 65918, the defendants' brief on judicial review is digested at ELR PEND. LIT. 65937, and the government's brief in support of its motion to strike affirmative defenses is digested at ELR PEND. LIT. 65947.]

Counsel for Plaintiff
Robert T. Lee
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5260

Counsel for Defendant
Kenneth N. McKinney, Robert D. Tomlinson
McKinney, Stringer & Webster
8th Fl., City Center Bldg., Main & Broadway, Oklahoma City OK 73102
(405) 239-6444