ELR Citation: ELR 20577
No(s). 83-854 WKS (D. Del. Feb 14, 1985)

In a private action to recover response costs pursuant to §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the court holds that plaintiff water company must obtain prior governmental approval of its remedial actions as a prerequisite to recovery of its costs. After hazardous substances were released from the county-owned Army Creek Landfill, near Wilmington, Delaware, into the Upper Potomac Acquifer, used as a primary source of supply by the Artesian Water Company, the water company sought response costs from New Castle County for all costs it incurred and expected to incur due to pumpage restrictions imposed as a result of the release. First, the court holds that the county, as an "owner or operator" pursuant to CERCLA §107(a), may not invoke the Delware Tort Claims Act to immunize itself from Artesian's CERCLA claim; the state law substantially interferes with the accomplishment of CERCLA objectives and is preempted by federal law. Next, after ruling that CERCLA §107 does provide for a private right of action, the court holds that Attesian may properly sue the county for response costs under the Act. The court next rules that CERCLA itself does not require governmental approval of response actions before private parties may recover costs, but that since private response costs, to be recoverable, must be consistent with the national contingency plan (NCP) promulgated and revised by the Environmental Protection Agency (EPA), the statute authorizes EPA to decide whether prior approval is necessary. The court finally rules that the NCP requires governmental approval of long-term "remedial" actions, but not short-term or emergency "removal" actions, before private parties can recover response costs under CERCLA §107.

Counsel for Plaintiff
Thomas D. Whittington Jr.
Whittington & Aulgur
One Rodney Square, P.O. Box 5550, Wilmington DE 19808
(302) 655-6142

E. Barclay Cale Jr., Frank M. Thomas Jr., Annemiek N. Young
Morgan, Lewis & Bockius
2000 One Logan Square, Philadelphia PA 19103
(215) 963-5000

Counsel for Defendant
B. Wilson Redfearn
Tybout, Redfearn, Casarino & Pell
Suite 1110, Bank-of-Delaware Bldg., 300 Delaware Ave., P.O. Box 2092, Wilmington DE 19801
(302) 658-6901

Michael A. Brown, George J. Weiner
Schmeltzer, Aptaker & Sheppard
Suite 500, 1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-1000

Robert K. Beste Jr., Charles H. Toliver IV
Biggs & Battaglia
1206 Farmers Bank Bldg., P.O. Box 1489, Wilmington DE 19899-1489
(302) 655-9677