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N.L. Industries, Inc. v. Halliburton Co.

ELR Citation: 40 ELR 20018
Nos. No. 10-CV-89A, (W.D.N.Y., 11/02/2010)

A district court denied an energy company's motion to dismiss CERCLA claims filed against it for reimbursement costs incurred by the former owner of a contaminated site, but granted its motion to dismiss the owner's contribution claims under CERCLA §113. The former site owner entered into an administrative order on consent (AOC) with EPA that required the owner to reimburse EPA for some response costs and to perform certain removal actions. The AOC settled nothing regarding the owner's ultimate liability. Nor did the AOC prevent EPA from requiring the owner in the future to perform additional activities under CERCLA. Under the plain language of the AOC, then, the owner not only has incurred cleanup costs directly from remedial efforts that it has undertaken but also may have to incur such costs in the future. The owner thus has a legally cognizable claim against the energy company under §107. Absent guidance to the contrary from a higher court, qualified CERCLA plaintiffs do not lose timely access to §107 so long as they have incurred costs directly—i.e., by performing the cleanup work themselves. Any attempt to distinguish direct costs resulting from a judgment, a legal settlement, a consent decree that resolves liability, or an administrative order on consent that does not resolve any liability is mere word play. Conversely, although the former owner might have a contribution claim against the energy company in the future, any attempt to seek contribution under §113 is premature.