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Boonton, Mayor of v. Drew Chem. Corp.

ELR Citation: 16 ELR 20328
Nos. No. 83-4761, 621 F. Supp. 663/23 ERC 1859/(D.N.J., 11/15/1985) ruling on defendant's motions

The court rules that a municipality may be a "state" for purposes of recovery under §107(a)(4)(A) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and that CERCLA authorizes recovery of preenactment response costs. The court first rules that municipalities may recover under §107(a)(4)(A). The definition of "state" is not expressly limited to states and should be interpreted broadly where necessary to accomplish the remedial purposes of the Act. Further, §107(f) authorizes recovery of damages to natural resources to include those controlled by local governments. It would be anomalous to give states a cause of action for damages to their natural resources, but to bar cities from such actions while expressly including resources owned by local governments within CERCLA's protective scope. Thirdly, Congress has often defined "state" to include municipalities. It is reasonable hare to expand the illustrative list set out in CERCLA's definition of "state" in §101(27) to encompass municipalities, which are often explicitly within the meaning of the term. Even if §107(f) were to be narrowly construed, it also authorizes recovery of natural resource damages by the "authorized representative" of a state. The court holds that the town was such an authorized representative. The court finds it significant, but not controlling, that New Jersey law construes the powers of municipalities broadly. The court notes that the disposal site is owned by the town and therefore is a matter of local concern within the scope of state law. The town was also acting on instructions of the state Department of Environmental Protection.

The court also rules that plaintiffs may seek to recover response costs incurred prior to CERCLA's enactment. It is established that CERCLA imposes liability for waste disposal predating the Act. Though courts have split on whether preenactment costs may be recovered, the court finds those decisions allowing recovery more persuasive. The requirement that costs be consistent with the national contingency plan concerns the nature of the response action for which costs can be recovered, not its timing. Also, the express prohibition on recovery of preenactment natural resource damages in §107(a)(4)(C) implies that Congress did not intend to preclude recovery of preenactment response costs, since §§107(a)(4)(A) and (B) contain no such express bar.

[This opinion supersedes the bench opinion published at 15 ELR 20962.]

Counsel for Plaintiff
Joseph J. Maraziti Jr.
Maraziti, Kalish & Gregory
65 Madison Ave., Morristown NJ 07960
(201) 538-1221

Counsel for Defendants
Harry Jay Levin
c/o Drew Chemical Corp., Boonton NJ 07005
(201) 263-7600

Edward F. Lamb
Robinson, Wayne, Levin, Riccio & LaSala
Gateway 1, Newark NJ 07102
(201) 621-7900

John J. Genoble
2 Church Lane, Montville NJ 07045
(201) 334-4050