The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge
This matter is before the Court on Defendant Sensient Colors, Inc.'s "Motion for Leave to Amend its Responsive Pleading." Sensient seeks to assert a counterclaim against the United States and the Administrators of the EPA and EPA Region 2, to assert third party "Bivens-type" claims against an EPA On-Scene Coordinator and the former Administrator of Region 2, and to add affirmative defenses. Plaintiff opposes Sensient's motion as futile. As will be discussed, Sensient's motion is denied because the court does not have jurisdiction over its proposed counterclaim, Sensient's third party complaint is procedurally and substantively improper, and Sensient's proposed new affirmative defenses are invalid.
In March 2007, Plaintiff, on behalf of the EPA, filed this cost recovery action against Sensient pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675 (2000). Plaintiff alleges Sensient's predecessor manufactured inorganic and organic pigments and dyes at the General Color Site ("Site") in the City of Camden, New Jersey.*fn1 Plaintiff alleges that Sensient is responsible for the contamination at the Site and is liable to reimburse it for costs in excess of $16 million that the EPA spent in its removal action responding to the release or threatened release of hazardous substances at the Site.
Part of Sensient's defense focuses on its objection to the EPA's characterization of the work at the Site as a "removal action." Sensient points out that the EPA's actions at the Site spanned eight years and cost $16 million. Sensient argues the EPA violated CERLCA by conducting a removal action that cost more than $2 million and lasted more than 12 months. See 42 U.S.C. § 9604(c)(1). Sensient also contends that the EPA deliberately mischaracterized its response activity at the Site as an emergency removal action in order to obtain funding to conduct a community redevelopment at Sensient's expense.
Sensient filed this motion after discovering what it characterizes as a "smoking gun" email. In a February 2006 email exchange between David Rosoff, the EPA On-Site Coordinator, and his EPA colleague, Rosoff allegedly admits that he conducted a remedial action at the Site disguised as a removal action. In relevant part, the email states:
It was a remedial site -- I just completed with removal funds over a six year period (a very fast RI/FS-RD/RA but a very slow removal). The secret is to spread it out and they don't realize how much you're spending . . . Preremedial didnt [sic] want to touch it so we did it ourselves. Normally, I could have never done this with Dick as a boss but with the support of Jane and Anthony he couldnt [sic] say no. There is no real 2 million dollar limit so I have learned. (Def. Br. Cert. Ex. S [Doc. No. 66]). According to Sensient, this email confirms its position that the EPA falsely classified its response action at the Site as an emergency removal action in numerous documents, including the administrative record. (Def. Br. at 6.) Sensient argues the EPA relied on the falsified documents and made materially false statements in order to exceed the statutory spending and time limits on removal actions. (Id. at 5-6.) Sensient alleges that Jane Kenny, the Administrator for EPA Region 2, knowingly signed falsified documents authorizing the EPA to exceed the statutory spending and time limits of a removal action. (Id. at 9.)
Sensient also alleges that Kenny improperly invited the City of Camden to demolish buildings on the Site, which created a threat to the public health and environment. (Id. at 8.) Sensient cites an August 2003 letter that Melvin Primas, Camden City's Chief Operating Officer, wrote to Kenny requesting the EPA's help to develop the Site for residential use. (Id. at 7.) Kenny responded that the EPA had no plans to address the hazardous waste buried beneath the buildings on the Site because there was no immediate threat to the public health or environment. (Id. at 8.) However, Kenny explained that if Camden demolished the buildings, then the buried waste would be exposed and the EPA would be willing to investigate the contamination and perform the appropriate clean up activities. (Id.)
Based on these allegations, Sensient seeks to amend its responsive pleading to assert a counterclaim against the Government and named officials, to assert third party Bivens claims, and to add additional affirmative defenses. Sensient seeks, inter alia:
1. An order declaring the EPA and its officials exceeded and violated their statutory authority and failed to perform their non-discretionary duties under CERCLA;
2. Preliminary and permanent orders enjoining the EPA and its agents from authorizing, prosecuting, or continuing to prosecute any action against Sensient for costs incurred by the United States in connection with the Site;
3. An award of damages to Sensient, against the EPA, incurred as a result of the EPA's violations of its statutory authority and failing to perform its non-discretionary duties under CERCLA;
4. An order declaring Third Party Defendants, Kenny, Rosoff, and certain unknown EPA officers, acting in their official capacities as government officials, knowingly violated Sensient's Due Process rights;
5. An order of judgment in favor of Sensient and against Third Party Defendants personally in an amount sufficient to compensate Sensient for monetary damages sustained as a result of Third Party Defendants violating Sensient's Due Process rights;
6. An award of costs and disbursements, including attorney and expert fees;
7. Any other relief deemed by the Court to be just and equitable under the circumstances; and
8. An order of judgment in its favor and denying all relief sought by the United States, a dismissal of the United States' Complaint against Sensient with prejudice, and for such other and further relief as the Court deems proper.
(Proposed Amended Answer, at 30-32 [Doc. No 66-3]).