ELR Citation: ELR 21444
No(s). 4:CV-92-1352 (M.D. Pa. Mar 20, 1995)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars potentially responsible parties' (PRPs') counterclaims against Pennsylvania arising from its cleanup efforts at the Drake Chemical Superfund site and the American Color and Chemical facility site in Clinton County, Pennsylvania. The court first holds that CERCLA §107 bars the PRPs' counterclaims against Pennsylvania because the provision does not waive sovereign immunity for acts a state carries out in conducting a hazardous site cleanup. Imposing liability for negligence in carrying out cleanup operations would run counter to CERCLA's statutory scheme and the policies it is intended to foster. And although §107(d)(2) allows courts to impose liability against state or local governments for costs or damages that PRPs may have incurred as a result of gross negligence or intentional conduct by those entities, the PRPs have not alleged such conduct. The court next holds that only by challenging the consistency of Pennsylvania's cleanup costs with the national contingency plan can the PRPs obtain redress for their contention that Pennsylvania or the U.S. Environmental Protection Agency failed to carry out the cleanup operation properly and that the state's alleged errors increased response costs that the PRPs are now being asked to pay.

Counsel for Plaintiff
Martin R. Siegel
Bureau of Hazardous Sites and Superfund Enforcement
Pennsylvania Department of Environmental Protection
400 Market St., 9th Fl., Harrisburg PA 15222
(717) 787-9368

Counsel for Defendants
Robert L. Collings
Morgan, Lewis & Bockius
2000 One Logan St., Philadelphia PA 19103
(215) 963-5000