A federal court in New Jersey has ruled that a voluntary participant in a state cleanup program cannot maintain a claim for contribution under section 113 of CERCL A. Queens West Dev. Corp. v. Honeywell Int’l, Inc., No. 10-4876 (D.N.J. 8/17/11). Plaintiff spent approximately $16 million remediating contamination on defendant’s property under the voluntary cleanup program of the New York State Department of Environmental Conservation. In 2010, plaintiff sued defendant under CERCL A sections 107 and 113, and for private nuisance. Defendant moved to dismiss the 113 and private nuisance counts.
Citing United States v. Atlantic Research Corp., 551 U.S. 128 (2007), the court held that costs incurred voluntarily are only recoverable under section 107(a) of CERCL A, which deals with cost recovery. The court noted that plaintiff did not allege that it was a potentially responsible party (PRP ) or that it entered into an administrative- or judicially approved settlement as required under section 113. As to the private nuisance claim, the court held that plaintiff could not pursue the claim under either New Jersey or New York law because the contamination at the site was caused decades ago by a prior owner and was not transported to the site by an adjacent or adjoining owner.