United States v. Iron Mountain Mines, Inc.
Opinion
Opinion
Levi, J.
MEMORANDUM OF OPINION AND ORDER
Rhone-Poulenc, Inc. moves for partial adjudication as to two issues: (1) whether EPA is prohibited by § 104(a)(3)(A) of CERCLA, 42 U.S.C. § 9604 (a)(3)(A), from responding to releases of naturally occurring metals; and (2) whether EPA bears the burden of proving that it is not responding to such releases. The United States, joined by the State of California, opposes Rhóne-Poulene’s motion and cross moves for summary judgment on the same issues.
I.
Section 9604(a)(3)(A) of CERCLA prohibits the EPA from ordering a removal or remedial action in response to naturally occurring substances:
42 U.S.C. § 9604 (a)(3)(A). According to Rhóne-Ppulenc, some of the removal or remedial actions ordered by EPA will affect naturally occurring substances.
In 1992, the United States moved for partial summary judgment to eliminate many of Rhone-Poulenc’s affirmative defenses. In September 1992, Judge Schwartz issued an opinion, United States v. Iron Mountain Mines, 812 F.Supp. 1528, 1548-49 (E.D.Cal.1992), granting the United States’ motion as to Rhone-Poulenc’s Eleventh Defense in which Rhone-Poulenc asserted a defense based upon § 9604(a)(3)(A). The United States…