ELR Citation: ELR 20060
No(s). s. 08-3843, -4007 (2d Cir. Feb 24, 2010)

The Second Circuit affirmed in part and reversed in part a lower court judgment relating to a PRP’s action against defendants under CERCLA and state law for contribution costs resulting from the identification and cleanup of hazardous substances on certain parcels of real property. The PRP settled its CERCLA liability with the New York State Department of Environmental Conservation (DEC) through a consent order. EPA, which was not a party to the order, did not expressly authorize the DEC to settle. Based on the plain text of the statute, the court held that the consent order qualified as an administrative settlement of liability under CERCLA §113(f)(3)(B). The provisions of the statute come into play once a PRP resolves its liability to the United States or a state: the statute does not require the United States to acquiesce in an administrative settlement. Nor does it require federal delegation of authority to a state to settle claims. The PRP was therefore entitled to seek contribution under CERCLA. At the same time, since the PRP’s claim fits squarely within the more specific requirements of §113(f)(3)(B), the PRP cannot seek recovery costs under CERCLA §107(a)(4)(B). As to NCP compliance, one way to establish compliance is to conduct a response under the monitoring, and with the ultimate approval, of the state’s environmental agency. Here, the PRP’s compliance with the consent order established its NCP compliance. As to the summary judgment motions, the analysis of a “genuine dispute of material fact” in the context of a CERCLA §113 claim may seem limited and constrained: the party seeking contribution need not establish the precise amount of hazardous material discharged or prove with certainty that a PRP defendant discharged the hazardous material to get its CERCLA claims past the summary judgment stage. Indeed, summary judgment is only proper when a defendant establishes it is not liable at all under CERCLA—namely, it is not a PRP under the statute, there is no plausible evidence that it discharged hazardous materials, or it is eligible for one of the three affirmative defenses available under §107. Here, summary judgment should not have been granted in favor of the defendants for certain of their claims as there were genuine issues of material fact as to defendants’ liability. Finally, the PRP’s state claims for contribution, indemnification and unjust enrichment were preempted under CERCLA.