ELR Citation: ELR 20320
No(s). 91-5128 (3d Cir. Dec 4, 1991)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not preempt the issuance by the New Jersey Department of Environmental Protection (DEP) of directives under the New Jersey Spill Compensation and Control Act (SCCA). The directives require responsible parties to pay for the state's share of cleanup costs under removal contracts with the U.S. Environmental Protection Agency (EPA) at the Lipari Landfill in Gloucester County and the Florence Land Recontouring Landfill in Burlington County. The court first holds that CERCLA does not preempt the SCCA because Congress did not intend for CERCLA to occupy the field or to prevent states from enacting laws to supplement federal measures relating to the cleanup of hazardous wastes. The language of CERCLA §114(a), the repeal of the original language of §114(c), and the legislative history of that repeal demonstrate this clearly. The court next rules that CERCLA §106(a) does not preclude state orders seeking payment for cleanup costs under state law because it does not limit state remedies under state law or apply to state efforts to recover cleanup costs. The court holds that the decision of the Court of Appeals for the Tenth Circuit in Colorado v. Idarado Mining Co., 21 ELR 20270, is distinguishable from the present case because that decision says nothing about the states' ability to obtain cleanup costs under their own laws. The court holds that the DEP directives do not conflict with CERCLA §§107 and 113, because Congress did not intend for CERCLA remedies to preempt complementary state remedies and CERCLA §114(b) would be unnecessary and inexplicable if costs that may be recovered under CERCLA may not be recovered under state law. Finally, the court holds that any passing reference by the district court to the language of the contracts between EPA and the state was harmless error.

Counsel for Appellant
Charles L. Thomason, Thomas F. Quinn
Wilson, Elser, Moskowitz, Edelman & Dicker
1600 Gateway One, Newark NJ 07102
(201) 624-0800

Counsel for Appellees
Robert J. Del Tufo, N.J. Attorney General; Mary C. Jacobson, John A. MacDonald, Dep. Attorneys General
401 E. State St., Trenton NJ 08625
(609) 292-4925