ELR Citation: ELR 20962
No(s). 83-4761 (D.N.J. Jul 24, 1985)

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 response costs incurred before the Act became law. 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. Section 107(f) authorizes recovery of damages to natural resources of the United States or a state, but also defines those resources to include those controlled by local governments. Even if §107(f) were to be narrowly construed, it also authorizes recovery of natural resource damages by "authorized representatives" of states. As to whether the town of Boonton is an authorized representative, the court finds it significant, but not controlling, that New Jersey law requires the powers of municipalities to be construed broadly to accomplish their responsibilities. The court holds that the town was an authorized representative with regard to cleanup actions taken after passage of CERCLA, because the town was carrying out instructions of the state Department of Environmental Protection.

The court also rules that plaintiffs can seek to recover response costs incurred prior to enactment of CERCLA. 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 more persuasive those decisions allowing recovery. The requirement that costs be consistent with the national contingency plan concerns the nature of the response, not its timing. The express prohibition on recovery of preenactment natural resource damages implies that Congress did not intend to preclude recovery of preenactment response costs, because those provisions contain no such bar.

Counsel for Plaintiffs
Joseph J. Maraziti Jr.
Maraziti, Falcon & Gregory
65 Madison Ave., Morristown NJ 07960
(201) 538-1212

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