CERCLA Contribution Action Not Available for BCP/VCP Cleanup

In Queens W. Dev. Corp. v. Honeywell Int’l, 2011 U.S. Dist. LEXIS 91795 (D.N.J. 2011), the plaintiff developers commenced remedial activities at two parcels that were accepted into the New York State Department of Environmental Conservation (NYSDEC) Brownfield Cleanup Program (BCP) and Voluntary Cleanup Program (VCP). Plaintiffs filed a lawsuit against the defendants as successors to the responsible parties to recover response costs that plaintiffs estimated to meet or exceed $20 million

Defendants filed motion to dismiss the CERCLA § 113(f)(3)(B) contribution claim, private nuisance and restitution claim. The court granted the defendants motion to dismiss the contribution claim because the state BCP and VCP agreements were not administrative or judicially approved settlements under  section 113(f)(3)(B) because the agreements did not resolve CERCLA liability. Instead, the plaintiffs alleged that they “have resolved, or will resolve, their liability to the State of New York.”.

The court also dismissed the private nuisance action. While the parties disputed whether New York or New Jersey law applied, the court said it did not have to resolve that issue because both states confined  private nuisance to situations where one’s property use interferes with another’s use of neighboring or adjoining property but that successor landowners could not maintain private nuisance actions against prior landowners of the same property.

The court declined to rule on the restitution claim depending on the outcome of the CERCLA private cost recovery claim under section 107(a)(4)(B).

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