July 07, 2020 Articles

Passaic River Litigation Spawns Decision in CERCLA 107/113 Debate

The issue of whether and when a potentially responsible party can bring a claim under section 107 of CERCLA continues to get attention in the courts.

By James P. Ray
Courts are consistently dismissing section 107 claims when the plaintiff has a viable section 113 claim.

Courts are consistently dismissing section 107 claims when the plaintiff has a viable section 113 claim.

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The issue of whether and when a potentially responsible party (PRP) can bring a claim under section 107 of CERCLA continues to get attention in the courts.

When as much as $2 billion is at stake, every disputed issue is significant. Such was the case when the U.S. District Court for the District of New Jersey decided the defendants’ motion to dismiss in Occidental Chemical Corp. v. 21st Century Fox, 2019 WL 9078433 (D. N.J. July 31, 2019). The case involves Occidental’s CERCLA claims against over 100 defendants at the Diamond Alkali Superfund Site on the Lower Passaic River in and around Newark, New Jersey, one of the largest Superfund sites in the country. The defendants moved to dismiss Occidental’s CERCLA section 107 cost-recovery claims, arguing that a responsible party like Occidental cannot bring a section 107 claim when it has a section 113 contribution claim. The court agreed, dismissing the section 107 claims for the majority of costs alleged in the complaint.

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