ELR Citation: ELR 20104
No(s). 03-6234 (2d Cir. May 18, 2005)

The Second Circuit affirmed in part a lower court's grant of summary judgment in favor of a corporation, which operated a fuel production facility in the 1950s under a government contract, in the current property owners' suit to recover costs related to the cleanup of hazardous substances on that property. The property owners are not eligible to seek contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(f) because they have not been sued under CERCLA §§106 or 107(a). However, a genuine issue of material fact exists as to whether the property owners incurred recoverable necessary response costs in admitting government officials and contractors onto its property. This aspect of the lower court's decision was therefore vacated and remanded. But the remaining response costs allegedly incurred are not recoverable under CERCLA because they were not necessary to address a threat to human health or the environment. And the radioactive contamination claims under CERCLA, as well as the Federal Tort Claims Act claims, are time barred.