ELR Citation: ELR 21420
No(s). 84-0152(JBS) (D.N.J. Apr 23, 1993)

The court holds in a contribution action against 52 municipalities arising from their alleged generation and disposal of hazardous substances at the Gloucester Environmental Management Services, Inc. landfill Superfund site, that municipalities were not intended to be per se exempt under either the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or the New Jersey Spill Compensation and Control Act, and that municipal solid waste is includable in the definitions of hazardous substances under CERCLA and the Spill Act. A group of generators sought contribution from the municipalities for their disposal of municipal solid waste at the landfill. Addressing whether municipalities may be held liable under CERCLA §107(a), the court finds that municipalities are persons under CERCLA and that no exceptions from §107(a) liability were made for municipalities. The court also finds that municipal solid waste can be a hazardous substance. That municipal solid waste is not specifically mentioned as a hazardous substance does not exempt it from CERCLA's reach. The court holds that Congress did not intend to incorporate by reference the Resource Conservation and Recovery Act's (RCRA's) municipal solid waste exemption, found in the implementing regulations of the Act, into CERCLA through CERCLA §101(14)(C). RCRA's exemption applies to household wastes, not hazardous substances, which are the concern of CERCLA. The court holds that a municipality that has generated or arranged for the disposal of municipal solid wastes at a facility may be liable under CERCLA §107(a)(3) for an equitable share of responsibility upon a third-party contribution claim under CERCLA §113(f). The court emphasizes that it does not hold that municipalities will be held equally culpable with other potentially responsible parties.

Applying the same analysis to the Spill Act as it did to CERCLA, the court holds that a municipality that has generated or arranged for the disposal of municipal solid wastes at a facility may be liable under the Spill Act for an equitable share of responsibility. The Spill Act, which is the state's analog to CERCLA, specifically incorporates CERCLA's definition of hazardous substances. Finally, the court holds that the New Jersey Tort Claims Act does not preclude liability under the Spill Act or under state nuisance law. The absence of a specific provision of the Act permitting liability does not eliminate claims against municipalities arising under the Spill Act, and common law supports a nuisance claim against the municipalities under the circumstances, provided negligence can be proved.

Counsel for Plaintiff
Theodore Aden, Maria J. Dittmar
LeBoeuf, Lamb, Leiby & MacRae
One Gateway Ctr., Ste. 603, Newark NJ 07102
(201) 643-8000

Counsel for Defendant
William Greenberg
Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross
One Riverfront Plaza, Newark NJ 07102
(201) 643-7000