ELR Citation: ELR 20105
No(s). 03-5314 (E.D.N.Y. Mar 22, 2010)

A district court dismissed a property owner's cost recovery and contribution claims against the prior owner for costs incurred remediating the site. The remediation took place pursuant to a consent order entered between the owner and the state environmental agency. CERCLA §107(a) permits a PRP to recover only those costs it has "incurred" in cleaning up a site. A PRP that pays money to satisfy a settlement agreement or a court judgment may pursue §113(f) contribution. But by reimbursing response costs paid by other parties, the PRP has not incurred its own costs of response and therefore cannot recover under §107(a). Here, the consent order requires the owner to "reimburse" the agency for its response costs, as opposed to requiring him to expend funds for remediation. Accordingly, the owner cannot recover the amounts he expended in paying the state agency's response costs under §107(a). And although the consent order qualifies as "an administrative or judicially approved settlement" under §113(f)(3)(B) entitling the property owner to seek contribution under CERCLA, the contribution claim is barred by the three-year statute of limitations.

[A prior decision in this litigation can be found at 37 ELR 20272.]