A federal court in New York has ruled that a CERCLA potentially responsible party (PRP), incurring cleanup costs under an EPA administrative order on consent (AOC) without a liability release, may pursue a section 107 cost recovery action against another PRP. NL Indus. v. Halliburton Co, No. 10-89 (W.D.N.Y. 11/2/10). The court also dismissed plaintiff’s claim for contribution under section 113 of CERCLA, reasoning that the AOC was not a “civil action,” which is a prerequisite to a contribution action under section 113(f)(1).
Allowing the section 107 action to proceed, the court rejected defendants’ argument that the AOC resolved some or all of plaintiff’s liability. According to the court, the AOC, which did not contain a liability release, “settled nothing regarding plaintiff’s ultimate liability.” Under the AOC, plaintiff agreed to conduct response activities in a residential neighborhood near a brass foundry it formerly owned. Plaintiff completed its work under the AOC in 2007.