Opinion
CIVIL ACTION No. 02-3618, SECTION: E/3
September 19, 2003
ORDER AND REASONS
This matter is before the Court on plaintiff United States of America's (hereinafter, the USA) motion to dismiss defendant CFI Industries Inc's (CFI) counterclaim against the U.S. Army Corps of Engineers (the Corps) pursuant to Rule 12(b)(1). Rec. Doc. 47. The motion to dismiss was denied in open court after oral argument was heard on September 17, 2003. The court now assigns written reasons.
BACKGROUND
The Agriculture Street Landfill located in the City of New Orleans was in use from 1909 to 1969, and, according to the USA, was owned, operated or used during various periods of time by the defendants. After Hurricane Betsy struck the City in 1965, pursuant to the Disaster Relief and Emergency Assistance Act (DRA), 42 U.S.C. § 5121 et sag., and the President's order, the Corps conducted clean-up operations in the City by collecting hurricane debris and dumping a portion of that debris at Agriculture Street Landfill. From October 1, 1980 through December 31, 2001, the EPA conducted clean-up operations in response to releases and threatened releases of hazardous substances into the environment from what was, by that time, the Agriculture Street Landfill Superfund Site.
The current lawsuit is a follow-up on Civil Action 99-0756, USA v. City of New Orleans, an action for injunctive relief and civil penalties against the City because it refused to provide the plaintiff with access to the Agricultural Street Landfill site for remediation activities. In April of 1999 this Court ordered the City to provide access. In this action, the USA seeks to revive its claim against the defendants for all costs and civil penalties under Sec. 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. § 9607 (a).
CFI counterclaimed against the Corps for recoupment against costs that it may be required to pay as a result of the USA's suit against it, to the extent that the USA seeks from CFI cleanup costs associated with cleaning up the debris the Corps dumped in 1965. The USA filed this Fed.R.Civ.P. 12(b)(1) motion to dismiss CFI's counterclaim against the Corps, claiming that the Court lacks subject matter jurisdiction based on the USA's sovereign immunity.
ANALYSIS
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) is a challenge to the district court's subject matter jurisdiction. The standard for review of a motion to dismiss is the same as that for a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6): the court may not dismiss a claim unless it appears certain that the "plaintiff cannot prove any set of facts in support of her claim which would entitle her to relief."Walker v. United States, 1998 WL 637360, *3 (E.D.La.), quotingBenton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). Dismissal of a complaint is proper only if the pleadings on their face reveal beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief, or if an affirmative defense or other bar to relief appears on the face of the complaint. Garrett v. Commonwealth Mortg. Corp. of America, 938 F.2d 591, 594 (5th Cir. 1991). Moreover, the Court must assume that the allegations in plaintiff's complaint are true, and must resolve any doubt regarding the sufficiency of plaintiff's claims in his favor. Fernandez-Montes v. Allied Pilots Ass'n., 987 F.2d 278 (5th Cir. 1993). Even if federal question jurisdiction exists, the United States may be sued only if it has waived its sovereign immunity pursuant to an act of Congress. Rothe Development Corp. v. United States Department of Defense, 194 F.3d 622, 624 (5th Cir. 1999) (citation omitted).
The USA argues that it is entitled to dismissal of CFI's counterclaim against the Corps because (1) the Corps' action in gathering and disposing of hurricane debris is a "removal" or "response" action under CERCLA, so it does not fall within CERCLA's "limited" waiver of the government's immunity; and (2) that the DRA, pursuant to which the Corps performed its hurricane cleanup activities, generally provides federal agencies with protection from liability for "discretionary" functions, and the debris removal and dumping is such a discretionary function.
CERCLA provides that "notwithstanding any other provision or rule of law", any person who owned or operated, arranged for disposal or treatment, or transported hazardous substances to a disposal site shall be liable for costs of removal or remedial action incurred by the government at such a site. 42 U.S.C. § 9607 (a). These three classes of "persons" are referred to as "potentially responsible parties" or PRP's. Congress, in CERCLA, defined "person" in relevant part as follows: "the term `person' means . . . [the] United States Government. . . ." 42 U.S.C. § 9601(21).
This liability is subject to some defenses for the release or threat of release of hazardous substances and the damages flowing therefrom, which are enumerated in subsection 9607(b) as an act of God, and act of war, and an act or omission of a third party other than an employee or agent of the defendant. Immunity is not a defense. United States v. Iron Mountain Mines, Inc., 881 F. Supp. 1432, 1442-43 (E.D. Cal. 1995). There is nothing ambiguous or vague about the waiver.
Moreover, CERCLA expressly provides:
Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this [Act] in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title. . . . .42 U.S.C. § 9620 (a)(1). This language, in a paragraph entitled "Application of chapter to Federal Government", is also a clear waiver of immunity. See Pennsylvania v. Union Gas, 491 U.S. 1, 10 (1989). A plain reading of the language is that the government is subject to CERCLA liability just like any private party or nongovernmental entity is subject to CERCLA liability.
Nevertheless, the USA argues that the Corps' removal and disposal of hurricane debris is exempt from any waiver of immunity in CERCLA because it was a "removal" or "response" action pursuant to 42 U.S.C. § 9601(23) which, according to the government, "defines activity undertaken pursuant to the Disaster Relief Act as a `removal' or `response' action under CERCLA." USA Memo in Support at p. 9, note 2. Actually, that section of CERCLA defines the term "removal" as follows:
The terms "remove" and "removal" meanthe cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the treat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the "release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 9604(b) of this title, and any emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act.42 U.S.C. § 9601(23). The term "release" is defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment. . . ." 42 U.S.C. § 9601(22). The term "hazardous substance" is defined at § 9601(14a) specifically by reference to other statutory descriptions and identifications of specific hazardous and toxic substances. It is not a generic term.
The government is apparently claiming that because the definition of "removal" in § 9601(23) includes the phrase "any emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act", it is immune from CERCLA liability for any actions the Corps takes pursuant to that act. The court disagrees. Under the language of CERCLA, the hurricane debris must have been a hazardous substance released into the environment for the Corps' removal and disposal of that debris to be a "removal" or "response" such that it is immune from CERCLA liability. Debris left by a hurricane is simply not "released hazardous substances" pursuant to CERCLA, and the Corps' removal and disposal of that debris pursuant to the DRA is not a CERCLA removal or response action.
The USA next argues that the Disaster Relief Act itself provides that the government is not liable for any claim based on the performance of a discretionary function or duty on the part of a federal agency in carrying out the provisions of the Act, citing 42 U.S.C. § 5173 5148. It argues that the hurricane clean-up was a discretionary function of the agency, therefore the government did not waive its sovereign immunity under that act.
42 U.S.C. § 5173 authorizes the President to order the use of Federal agencies to clear debris and wreckage resulting from a major disaster.
42 U.S.C. § 5148 provides as follows:
The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter.
Even assuming that the Corps' clean-up" of hurricane debris" was a discretionary function of the agency, CFI argues that the "notwithstanding any other provision or rule of law" language in section 9607(a) overrides the immunity granted by the DRA in the case of a conflict between the statutes. The Court agrees. InIron Mountain Mines, Inc., the district court analyzed that phrase in CERCLA in relation to a waiver of liability in the Flood Control Act that is similar to the waiver of liability in the DRA. 881 F. Supp. at 1440-41. That court held that although the Corps was exempt from liability for damages from its actions pursuant to the provisions of the Flood Control Act, the language in CERCLA § 9607(a), combined with the clear waiver of immunity in § 9620(a)(1), "appears to expressly waive any immunity that the United States may have under any other statute or common law rule." Id., citing Union Gas Co., 491 U.S. 1, 10, 109 S.Ct. 2273, 2279, 105 L.Ed.2d 1 (1989). The reasoning is persuasive.
The USA argues that Easton v. Gilbert Southern Corp., No. 9400505-CIV, 1995 U.S.Dist. LEXIS 1145 (S.D.Fla. Jan. 3, 1995) is dispositive of the issue. In that case, the court concluded that the waiver of liability in the DRA protected the Corps from plaintiff's claim that when it temporarily stockpiled debris from Hurricane Andrew on his property, the Corps and Gilbert failed to properly remediate the property in violation of a lease and management agreement. Plaintiff sued pursuant to CERCLA. The case is distinguishable on its facts. It is not clear from reading the case, but it appears that no remediation activity was actually undertaken and no response costs incurred pursuant to CERCLA, nor is it clear that the property was actually a hazardous waste site, even though the plaintiff apparently alleged that the Corps violated CERCLA provisions in removing the debris. That court was "not persuaded that the waiver of immunity in CERCLA provides a clear and unambiguous waiver of immunity in the instant case." Id. at *10 (emphasis added). In any case, the court does not find the case persuasive.
This court concludes that the express language of the statute superimposes CERCLA liability on agencies of the government even in the event that those agencies, including the Corps, would not be" liable "generally" "for" damages from" their actions pursuant to waivers of liability in other statutes. For example, pursuant to the § 5148 of the DRA, the Corps may not be liable to an individual whose property is damaged, or who is personally injured, by the Corps' actions in its clean-up of hurricane debris, but that waiver of liability does not extend to Corps' activities that fall within the ambit of CERCLA § 9607(a) as alleged in CFI's counterclaim.
In addition to disputing the USA's arguments, CFI argues that under 5th Circuit law, no waiver of sovereign immunity is required for a compulsory counterclaim seeking only recoupment or set-off against the government when the government has sued the counterclaimant in the first place, citing Frederick v. United States, 386 F.2d 481, 488 (5th Cir. 1967). Having determined that the USA has clearly and unambiguously waived its immunity from CERCLA liability, the court need not address the argument.
Accordingly, that the United States of America's motion to dismiss CFI Industries," Inc.'s counterclaim against the U.S. Corps of Engineers was DENIED on September 17, 2003.