Full opinion text
OPINION BARRY, District Judge. I. INTRODUCTION As may be expected when motions and cross-motions for summary judgment are supported by eight briefs, totalling some 350 pages, and over 300 separate exhibits, totalling thousands of pages, very little is agreed upon by the parties. They do agree that defendant Aluminum Company of America (hereinafter “Alcoa”) constructed and operated an industrial manufacturing plant in Edgewater, New Jersey (hereinafter “Edgewater plant”) from 1914 through 1965. They agree, as well, that between 1956 and 1965, Alcoa made use of at least two fire-resistant hydraulic fluids containing polychlorinated biphenyls, or PCBs. These hydraulic fluids, Pydraul F-9 (assertedly composed of over 50% PCBs) and Pydraul 600, were used in at least fourteen of the 120 hydraulic systems that operated in the Edgewater plant. At least two machines — a Dempster baler and a vertical impact extrusion press — utilized Py-draul F-9, and an indeterminate number of electrical transformers in the Edgewater plant were contaminated with PCBs. The parties also agree that in 1968 Alcoa sold the Edgewater plant, “as is,” to Irving Maidman (who thereupon assigned his rights to Tri-Terminal Corporation), and that in 1983 (after two intervening owners), plaintiff Amland Properties Corporation (hereinafter “Amland”) acquired title to the property pursuant to an “as is” purchase agreement with Citibank. The condition of the property at the time of the 1968 sale is in considerable dispute. Alcoa maintains that it removed most of the manufacturing equipment (except for 45 transformers) from the Edgewater plant, that the plant was free of debris and had been swept clean, and that the buildings were weather-tight. See Deft’s Brief in Opposition to Plaintiff’s Motion for Partial Summary Judgment (hereinafter “Deft’s CERCLA Opposition Br.”) at 7-8; Anderson Aff., ¶¶ 7-10 and Exhs. 1-13. Amland contends that, at the time of the 1968 sale, “many ovens, furnaces, tanks, machines, [and] pumps” remained, and that “areas of the Edgewater plant floors were stained with oil and fluids.” See Plff’s Reply Brief in Support of Motion for Partial Summary Judgment (hereinafter “Plff’s CERCLA Reply Br.”) at 18-19; Plff’s Supp.App., Tab 4. The parties also disagree as to the activities conducted at the plant by Tri-Terminal Corporation and its lessees, and particularly disagree as to whether those activities may have involved use of PCBs, compare Plff’s CERCLA Reply Br. at 19 with Deft’s CERCLA Opposition Br. at 8-10; discovery as to these issues has apparently has not been completed. Id. at 8. Furthermore, although it is clear that, even in 1968, Alcoa had knowledge that PCB use presented some amount of risk, see Deft’s Reply Brief in Support of Summary Judgment Motion on Plaintiff’s Common Law Claims (hereinafter “Deft’s Common Law Reply Br.”) at ■43-44; Deft’s Supp.App., Tabs 9-10, the extent of that knowledge remains undetermined, and further discovery in this area is necessary as well. See Plff’s Brief in Support of Cross-Motion for Summary Judgment on Strict Liability Claim (hereinafter “Plff’s Strict Liability Br.”) at 62 and n. 68. Prior to its purchase of the Edgewater plant, Amland inspected the property. In 1981, a laboratory retained by Amland advised that testing for organics (such as PCBs) and inorganics be conducted, a suggestion Amland chose to decline. Although Alcoa contends that the suggested testing would have revealed any presence of PCBs, it does not appear to argue that Amland in fact was aware of the PCB contamination at the time of its 1983 purchase of the Edgewater plant. See Deft’s CERCLA Opposition Br. at 15 and n. 15; 17 n. 18. The date of Amland’s discovery of PCBs at the plant was April 1985, a result of testing performed by the engineering firm of Paulus, Sokolowski & Sartor. See Plff’s CERCLA Reply Br. at 22; Plff’s App., Tab 9. In June 1985, Amland notified Alcoa, the municipality of Edgewater, the New Jersey Department of Environmental Protection (hereinafter “DEP”), and the United States Environmental Protection Agency (hereinafter “EPA”) of the presence of PCBs at the Edgewater plant. That same month, Amland contends, it was notified by DEP that it (and Alcoa) were parties responsible for that contamination, and that DEP would, if need be, commence an enforcement action mandating that Amland clean up the PCBs. See Plff’s CERCLA Reply Br. at 23; Brecher Aff., ¶ 8. A draft administrative consent order (“ACO”), proposed in July 1985, called for a cleanup standard of no detectable PCBs at surface levels and up to 5 parts per million (“ppm”) of PCBs below surface. See Plff’s Supp. App., Tab 35 at 16. The final ACO, signed on August 21, 1986, contained a surface level standard of 1 ppm, and the same below-surface standard. Id., Tab 4, H 13. Whereas Amland portrays the DEP action as the imposition of a cleanup standard upon Amland, see Plff’s CERCLA Reply Br. at 24-25, Alcoa maintains that DEP advised Amland that the condition of the Edgewater plant was not severe enough to warrant coverage by the Superfund, and that Amland (at DEP’s suggestion) signed the ACO as “the fastest route for getting state approvals” for its planned transformation of the Edgewater site into residential condominiums. Deft’s CERCLA Opposition Br. at 20-21, and 21 n. 23; Deft’s App., Tab 75. The cleanup of the Edgewater plant included, according to Amland, initial consideration of various remedial measures, such as the use of solvents and microwaves, and encapsulation (covering) of affected surfaces. See Plff’s CERCLA Reply Br. at 27; Brecher Aff., ¶¶ 10,16. The actual cleanup undertaken by Amland is said to have included “scarifying (removing the surfaces of) concrete flooring, removing concrete slabs, removing contaminated wood block flooring, and decontaminating non-porous surfaces (walls, pipes, roofs, trusses, etc.).” Plff’s CERCLA Reply Br. at 27; see Plff’s Supp.App., Tab 43. In addition, the cleanup procedure called for the decontamination of debris to a level of 50 ppm PCBs or lower, so that the decontaminated debris could be disposed of at a general municipal landfill, rather than at a hazardous waste landfill. See Brecher Aff., ¶ 17; Deft’s Reply Brief in Support of Summary Judgment Motion on Plff's CERCLA Claims (hereinafter “Deft’s CERCLA Reply Br.”) at 29 n. 36. It appears, however, that PCB contamination has “migrated” deeper into certain concrete flooring than had been previously detected, see Plff’s CERCLA Reply Br. at 28, requiring that Amland petition DEP for a revised cleanup procedure. See Brecher Aff., ¶ 11. Amland has conducted numerous tests for the presence of PCBs in the land and ambient air surrounding the Edgewater plant. Tests performed at a school located across from the plant’s northern front proved negative, as have all other tests performed outside the plant’s property. See Deft’s App., Tabs 68-69; Deft’s CERC-LA Opp. Br. at 18 n. 19. The only — or at least the primary — exterior PCB contamination pointed to by Amland is the presence of PCBs in the asphalt of the Edge-water plant’s parking area. See Plff’s CERCLA Reply Br. at 47 n. 136; Plff’s App., Tab 9 at 1. This contaminated area, directly adjacent to the Edgewater plant’s loading docks, shows PCB levels of 2 to 47 ppm. Perhaps because this contamination is less than 50 ppm, which is the minimum level of PCB contamination that would constitute a spill under EPA’s Spill Cleanup Policy, see 52 Fed.Reg. 10,688 (1987), Am-land has not yet acted to remedy the contaminated area. See Deft’s Supp.App., Tab 6. Amland commenced the instant lawsuit against Alcoa in April 1986 and seeks recovery of the costs it has incurred in evaluating and responding to the PCB contamination at the Edgewater plant. Jurisdiction in this Court is predicated upon the claim asserted under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., for the recovery of past and future response costs. In addition, the complaint asserts four common law tort claims: strict liability, private nuisance, public nuisance, and negligence. Amland moved, in early 1988, for partial summary judgment, requesting a declaration that Alcoa was and will be liable to Amland for the latter’s response costs. Alcoa thereupon cross-moved for summary judgment as to Amland’s CERCLA and common law claims. In response, Amland cross-moved for summary judgment as to its strict liability claim. For the reasons that follow, I grant Alcoa’s motions as to Amland’s CERCLA claim, excluding monitoring and evaluation costs since April 1985, and as to Amland’s private nuisance, public nuisance, and negligence claims. Both parties’ summary judgment motions as to Amland’s strict liability claim will be denied, in that at this juncture factual issues preclude a definitive application of the Restatement (Second) of Torts’ factors regarding abnormally dangerous activities. II. DISCUSSION A. CERCLA CERCLA was enacted in 1980, in the waning months of the 96th Congress, and its “precipitous passage” perhaps explains the “inartful drafting and numerous ambiguities” that characterize its provisions. Artesian Water Co. v. Gov’t of New Castle County, 851 F.2d 643, 648 (3d Cir.1988). The act attempts to provide for responses, both short-term and long-term, to the presence of hazardous wastes that threaten to or have already contaminated the environment. In addition, responses both by federal and state governments and by private parties are included within CERCLA’s ambit. As to both short-term and long-term responses, and both governmental and private cleanups, the overarching goal of CERCLA is to place the financial cost of the cleanup upon those parties responsible for creating the hazardous condition. See Lone Pine Steering Committee v. EPA, 777 F.2d 882, 886 (3d Cir.1985); Artesian Water Co. v. Gov’t of New Castle County, 659 F.Supp. 1269, 1276 (D.Del.1987), aff'd 851 F.2d 643 (3rd Cir.1988). The section under which Amland seeks recovery states as follows, in relevant part: Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, shall be liable for (B) any other necessary costs of response incurred by any other person [i.e., any person or entity other than the federal or state government] consistent with the national contingency plan[.] 42 U.S.C. § 9607(a)(2)(B). In order to impose liability under this section, Amland must plead and prove the following five elements: (1) Alcoa falls within one of the four categories of “covered persons,” 42 U.S.C. § 9607(a)(l)-(4); (2) There was a release or threatened release of a hazardous substance resulting from the disposal of that substance; (3) The release or threatened release caused Amland to incur response costs; (4) Amland’s costs were necessary costs of response; and (5) Amland’s response was consistent with the national contingency plan (“NCP”). See Artesian, 659 F.Supp. at 1278; Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152-1153 (9th Cir.1989). Absent the demonstrated presence of an affirmative defense — that the release was due solely to an act of God or of war, or an act or omission of a third-party unrelated to the defendant, see 42 U.S.C. § 9607(b)(l)-(3) — the above provisions of CERCLA, if proven, serve to impose strict liability upon the offending party. See New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985); United States v. Price, 577 F.Supp. 1103, 1113-14 (D.N.J.1983). Alcoa raises a number of arguments in support of its contention that Amland may not recover under CERCLA. First, Alcoa makes a somewhat half-hearted argument that CERCLA should not be applied retroactively (i.e., to conduct occurring prior to the passage of CERCLA in 1980) in an action between private parties. It further contends that its actions did not constitute a disposal of hazardous waste, and that no release or threatened release is demonstrated. Finally, Alcoa maintains that Am-land is barred from CERCLA recovery because the costs incurred by Amland were not consistent with the NCP. As will be discussed below, I reject the first three contentions, but am persuaded that the vast majority of Amland’s response costs were not consistent with the NCP and, thus, are not recoverable under CERCLA. 1. Retroactive Application of CERC-LA Alcoa raises its retroactivity argument in two pages of its initial brief, see Deft’s Brief in Support of Cross-Motion for Summary Judgment (hereinafter “Deft’s Cross Motion Br.”) at 18-20. Following Amland’s rebuttal, see Plff’s Strict Liability Br. at 32-37, Alcoa’s retroactivity argument was relegated to a footnote. See Deft’s CERCLA Reply Br. at 2 n. 4. Alcoa’s succinct argument commences with the statement that the Court of Appeals for the Third Circuit has recognized that a “serious question exists” as to the application of CERCLA, in private party response actions, to conduct which took place before the 1980 enactment of that statute. See Deft’s Cross Motion Br., at 18. The case cited, Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86 (3d Cir.1988), in fact said no such thing, but only noted that the retroactivity issue had been neither briefed nor raised and, thus, should be decided in the first instance by the lower court. Id. at 92. Alcoa also asserts that the Smith Land court “notes authorities which reach both results” on this question, see Deft’s Cross Motion Br. at 18; in fact, every authority cited in Smith 'Land holds that CERCLA may be applied retroactively, see United States v. Northeastern Pharmaceutical & Chemical Co. (hereinafter NEPACCO) 810 F.2d 726, 732-34 (8th Cir.1987); Mayor of Boonton v. Drew Chemical Co., 621 F.Supp. 663, 668 (D.N.J.1985); that the 1986 amendments to CERCLA may be applied retroactively, see United States v. Rohm & Haas Co., 669 F.Supp. 672, 676-77 (D.N.J.1987); or that the Resource Conservation and Recovery Act, 42 U.S.C. § 6973, may be applied retroactively. See United States v. Price, 523 F.Supp. 1055, 1057, 1071-72 (D.N.J.1981). Indeed, Alcoa cites no case, and this Court has found none, which holds that CERCLA should not apply retroactively. See O’Neil v. Picillo, 682 F.Supp. 706, 729 (D.R.I.1988). Moreover, the reasoning of the courts holding proper the retroactive application of CERCLA is persuasive. As they note, the language of the statute providing for liability is couched in the past tense: “any person who at the time of disposal ... owned or operated,” 42 U.S.C. § 9607(a)(2); “any person who arranged with a transporter ... for disposal,” id. § 9607(a)(3); “any person who accepted any hazardous substances ... for transport.” Id. § 9607(a)(4). In addition, because CERC-LA authorized government and private parties to clean up abandoned waste sites and then seek recovery of the costs from responsible parties, the statute was intended to reach conduct (i.e., the abandonment of waste sites) that occurred prior to the date of CERCLA’s passage. See United States v. NEPACCO, 810 F.2d at 733. Due process arguments against the retroactive application of CERCLA have been uniformly rejected on the ground that “the retroactive application of the legislation is itself justified by a rational legislative purpose,” namely, the allocation of cleanup costs regarding abandoned waste sites to those parties responsible for creating those sites. Id. at 733-34, citing Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730, 104 S.Ct. 2709, 2718, 81 L.Ed.2d 601 (1984); see also O’Neil, 682 F.Supp. at 729; United States v. South Carolina Recycling & Disposal, Inc., 653 F.Supp. 984, 996-98 (D.S.C.1986); United States v. Shell Oil Co., 605 F.Supp. 1064, 1072-73 (D.Colo.1985). And, finally, Alcoa has given this Court no reason why CERC-LA should apply to pre-1980 conduct in actions brought by the federal or state government but should not apply to that conduct in actions brought by private parties. Accordingly, I hold that CERCLA is properly invoked here. 2. Disposal The definition of “disposal,” for the purposes of CERCLA, is set forth in the Solid Waste Disposal Act: the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3) (incorporated at 42 U.S.C. § 9601(29)). Alcoa contends that the conduct most vigorously complained of here — the spilling of PCB-containing fluids onto the floor of an industrial plant — is not disposal “into or on any land or water,” in that the interior of a building falls within neither of those categories. See Deft’s CERCLA Opposition Br. at 25; Deft’s CERCLA Reply Br. at 27-28. Alcoa also argues that the presence of PCBs on the asphalt outside the Edgewater plant does not evidence a disposal in that the asphalt is neither land nor water within the meaning of CERCLA, Alcoa was not responsible for that contamination, and the reported level of contamination is too low to support a finding of disposal. Id. at 29. I need not and, thus, will not address this latter argument because I find that disposal within the plant is disposal “into or on any land or water” within the meaning of CERCLA. The few reported decisions concerning this issue have held that placement of hazardous wastes inside an enclosed manufacturing facility may constitute disposal of such waste into or on any land so as to satisfy the CERCLA definition. In BCW Associates Ltd. v. Occidental Chemical Corp., Civ. No. 86-5947, 1988 WL 102641 (E.D.Pa. Sept. 29, 1988), the floors and fixtures of a warehousing facility came to be covered by a layer of dust as a result of the operations of Firestone Tire & Rubber Company, a previous tenant. Id. at 5. When the warehouse was reactivated, and used once more for the storage of goods, it was discovered that the dust was contaminated by lead. Id. at 8. Firestone, in an attempt to avoid CERCLA liability, argued that disposal within the warehouse fell outside § 9601(29) in that such disposal was not disposal into or on land. The court rejected this “unduly narrow” interpretation of the definition of “disposal,” noting that “[i]t is clear that Congress intended the term ‘land’ to encompass buildings and other types of real estate.” Id. at 43; see 42 U.S.C. § 9607(a)(2) (holding liable owner or operator of a facility at which disposal occurs); § 9601(9) (defining facility as, inter alia, “any building structure, [or] installation”); State of New York v. General electric Co., 592 F.Supp. 291, 296 (N.D.N.Y.1984) (“Indeed, it appears that Congress sought to deal [in CERCLA] with every conceivable area where hazardous substances come to be located ...”). In so holding, the BCW Associates court relied upon Emhart Industries, Inc. v. Duracell Int'l, Inc., 665 F.Supp. 549 (M.D.Tenn.1987), a case cited and discussed by both parties before me. Emhart concerned PCB contamination of a manufacturing plant in Waynesboro, Tennessee, in which drums containing PCBs were stored in the building, PCBs had contaminated the floor and roof of the plant, and underground tanks containing PCBs were leaking. Id. at 555. The court applied the CERCLA definition of “disposal” to that situation: At Waynesboro, the spilling of PCBs during their use by Duraeell in the manufacturing process, as well as the dumping of PCBs outside the plant, the flow of PCBs into the Green River, and the leaching of PCBs through the soil and into the groundwater during Duracell’s ownership all constitute disposal under CERC-LA. Id. at 574 (emphasis added). Alcoa reads this passage as holding that the spilling and storage of PCBs within a plant constitute disposal only if accompanied by dispersal of those PCBs into the land or water. See Deft’s CERCLA Opposition Br. at 26. That reading distorts the language quoted above, which indicates, at least to me, that the spilling of PCBs within the plant and the dumping of PCBs outside the plant, independently of one another, amount to a CERCLA disposal. Moreover, a disposal can be such that hazardous waste “may” enter the environment; under Alcoa’s reading, a disposal would require that the waste in fact reach the environment. In view of Alcoa’s failure to cite any case holding that disposal within a plant is not disposal “on any land,” and in view of BCW Associates and Emhart, I find that spills or leaks of PCBs within the Edgewater plant that were caused by Alcoa’s operation of that plant are to be considered disposals within the meaning of CERCLA. 3. Release or Threatened Release The term “release” is defined by CERC-LA as any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant). 42 U.S.C. § 9601(22). As noted above, Am-land must demonstrate that Alcoa’s disposal of PCBs at the Edgewater plant resulted in “a release or a threatened release” of PCBs into the environment. Alcoa contends that there has been no actual release of PCBs into the environment in that testing of the ambient air and of the land surrounding the Edgewater plant has revealed no detectable PCBs, see Deft’s CERCLA Opposition Br. at 29-30; Deft’s App., Tabs 68-69, and in that the presence of one patch of PCB contamination in the asphalt, at less than 50 ppm concentration, is not sufficiently serious to be considered a release. See Deft’s CERCLA Reply Br. at 31-32. Alcoa also suggests that the absence of any actual release, in view of the “demolition and renovation work” already conducted by Amland at the Edge-water plant, is evidence that the PCB presence at the plant poses no threat of release. See Deft’s CERCLA Opposition Br. at 29. As with the term “disposal,” courts have been inclined to give a broad reading to the terms “release” and “threatened release.” One court observed that whereas the leaking from tanks containing hazardous waste constitutes an actual release, “the corroding and deteriorating tanks, [defendant’s] lack of expertise in handling hazardous waste, and even the failure to license the facility, amount to a threat of release.” Shore Realty, 759 F.2d at 1045. A similarly broad definition of “threatened release” was adopted by the court in United States v. Northernaire Plating Co., 670 F.Supp. 742 (W.D.Mich.1987). In Northemaire, the federal government commenced a CERCLA action against ah owner of a locked plant containing drums and tanks of chemicals. After finding the presence of an actual release, the court went on to discuss whether a threatened release had been established as well: The evidence shows that there were hazardous substances at the Northemaire site and that these substances, individually and collectively, would pose a threat to the population of the Cadillac, Michigan area if they were to be released into the environment. The evidence further demonstrates that none of the defendants were willing to take responsibility for ensuring that no such release would occur. The evidence of the presence of hazardous substances at the facility, when combined with the evidence of the unwillingness of any party to assert control over the substances, amounts to a threat of release. Id. at 747. I, thus, turn to the facts of the case before me, keeping in mind the broad reading to be accorded the phrase “threatened release.” There is evidence that the PCBs in the concrete flooring of the Edgewater plant have migrated further into the core of the concrete. See Brecher Aff., ¶ 11. In Emhart, the court specifically found that PCBs “can leach into the concrete flooring and ultimately the ground.” 665 F.Supp. at 559. In part on the basis of this factual finding, the court held that, along with the leaking underground tanks, “the continued leaching and seepage from earlier spills at the Waynesboro plant are a release or threatened release.” Id. at 574. The evidence before me indicates that the PCBs in the concrete flooring, if left unremedied, could eventually leach through to the soil under the Edgewater plant. I note that there is no requirement that an actual release have already occurred or be imminent; a threatened release, on its own, is sufficient under CERCLA. See BCW Associates, slip op. at 44 (even though there was no documented evidence of an actual release, evidence regarding dust in warehouse “showed that there was a threatened release of the lead dust on goods being shipped to [plaintiff’s] customers and on the shoes and clothing of workers leaving the warehouse”). The presence of PCBs in the concrete flooring at the Edgewater plant constitutes a threatened release within the meaning of CERCLA. 4. Consistency with the National Contingency Plan The parties sharply disagree as to whether a plaintiff must plead and prove that response costs were incurred consistent with the NCP in order to establish liability under CERCLA. Compare Plffs CERC-LA Reply Br. at 35-39 with Deft’s CERC-LA Reply Br. at 4-5. I find that the weight of recent authority in cases (like this one) of private party recovery actions holds that response costs incurred consistent with the NCP is an element of a CERC-LA plaintiff’s ease on liability. See Ascon Properties, supra, 866 F.2d at 1152-53; BCW Associates, slip op. at 42; Versatile Metals v. Union Corp., 693 F.Supp. 1563, 1574 (E.D.Pa.1988); Artesian, 659 F.Supp. at 1291-92. Where, as here, there is a complete factual record upon which to make the determination of consistency vel non, there is nothing to be gained by delaying that determination until trial. The eases cited by Amland do not require a different result. The first set of cases— United States v. Northernaire Plating, supra; Washington v. Time Oil Co., 1988 Haz. Waste Litig. Rep. (Andrews) 12,579 (W.D.Wash. Mar. 29, 1988); United States v. Bliss, 667 F.Supp. 1298 (E.D.Mo.1987); and United States v. Medley, 25 Env’t Rep. Cas. (BNA) 1315, 1318 (D.S.C. Nov. 5, 1986) —all involved cleanups performed by the federal or state government. In such actions, the burden of proof is on the defendant to demonstrate that the costs incurred were inconsistent with the NCP, and, absent such demonstration, the costs incurred by the government are presumed to be not inconsistent. See NEPACCO, 810 F.2d at 747; Artesian, 659 F.Supp. at 1277 n. 8; 42 U.S.C. § 9607(a)(4)(A) (federal or state government may recover response costs that are “not inconsistent” with the NCP). Conversely, in private recovery actions, the burden of proof is on the plaintiff to demonstrate that its costs were consistent with the NCP. NEPACCO, supra; Artesian, supra. Thus, the governmental cleanup cases referred to by Amland are neither helpful nor persuasive in a discussion of the liability of a private party plaintiff. The one private party recovery action cited by Amland may be distinguished, for other reasons, from the case at bar. In T & E Industries, Inc. v. Safety Light Corp., 680 F.Supp. 696 (D.N.J.1988), the court entered partial summary judgment in favor of plaintiff, declaring that defendants were liable to plaintiff for all response costs incurred consistent with the NCP. Id. at 709. The court observed that the factual record did not permit, at that time, a determination of consistency with the NCP, so that summary judgment as to particular costs could not be entered. Id. In the matter before me, the factual record as to consistency is complete, and the question is ripe for decision. Moreover, whereas in T & E defendants did not contest a significant portion of plaintiff’s asserted response costs, see id. at 706, all of Amland’s response costs are disputed by Alcoa. Accordingly, “[tjhis Court must address consistency with the NCP at this juncture in order to determine whether [plaintiff] is entitled to recover any of its response costs, and to avoid the risk of a pointless trial at some later date.” Artesian, 659 F.Supp. at 1292 (emphasis in original). Costs incurred in responding to releases or threatened releases of hazardous waste are divided by CERCLA into two categories. 42 U.S.C. § 9601(25). The first, removal actions, are defined as [t]he cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release.... The term includes, in addition, without being limited to, security fencing or other measures to limit access.... Id., § 9601(23). All other responses are termed remedial actions, defined as those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release ... to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes ... neutralization, cleanup of released hazardous substances or contaminated materials Id. § 9601(24). Removal actions are to be taken in response to an immediate threat to the public welfare or to the environment, see Versatile Metals, 693 F.Supp. at 1577; 40 C.F.R. § 300.65(b)(2)(i)-(viii) (setting out factors for determining appropriateness of removal action), and are “primarily ... intended for the short-term abatement of toxic waste hazards.” Piccolini v. Samon’s Wrecking, 686 F.Supp. 1063, 1068 (M.D.Pa.1988). Remedial actions, on the other hand, “are generally considered long-term or permanent remedies.” T & E, 680 F.Supp. at 706; see BCW Associates, slip op. at 47. The distinction between these actions is of no small importance, for whereas removal actions need only comply with the relatively simple NCP requirements set forth at 40 C.F.R. § 300.65, see id. § 300.71(a)(2)(ii); BCW Associates, slip op. at 50-51, remedial actions must comport with the “more detailed procedural and substantive provisions of the NCP” as set forth at 40 C.F.R. § 300.68. See id. § 300.71(a)(2)(h); Versatile Metals, 693 F.Supp. at 1576. Amland admits, as it must, that “the bulk of [its] response measures have been directed to a permanent remedy,” and are governed by the NCP guidelines concerning remedial actions. See Plff s Strict Liability Br. at 7 n. 4. Two sets of initial responses are claimed by Amland to be removal actions: actions taken in order to rectify the accessibility of the site to trespassers (erecting a fence around the plant and providing a 24-hour guard), see id., and Amland’s “initial monitoring and assessment of [the] threatened release.” See Plffs CERCLA Reply Br. at 40. As to the security guard and fencing, these measures—although clearly within the definition of “removal actions”—were undertaken by Amland prior to April 1985 when Amland states that it first became aware of the presence of PCBs at the Edgewater plant. See Deft’s CERCLA Reply Br. at 9 n. 12, 33 n. 43; Deft’s App., Tabs 1, 36-37, 46; Deft’s Supp. App., Tab 1. Consequently, these measures cannot be said to have been undertaken in response to an immediate (or any) health or environmental threat, and the costs incurred cannot be recovered under CERCLA. Any initial monitoring and assessment of the threatened release of PCBs at the Edgewater plant after April 1985 fall within the statutory definition of removal actions. See 42 U.S.C. § 9601(23); T & E, 680 F.Supp. at 706; General Electric, 592 F.Supp. at 298. Moreover, such initial monitoring costs are recoverable even absent any subsequent recoverable response costs. Artesian, 851 F.2d at 651; Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir.1986). Finally, “the detailed NCP provisions governing other response actions cannot reasonably be applied to preliminary monitoring and evaluation of a release of hazardous substances.” Artesian, 659 F.Supp. at 1294. Accordingly, any preliminary monitoring and evaluation costs incurred by Amland after April 1985 with respect to the presence of PCBs at the Edgewater facility are compensable under CERCLA, and Alcoa will be held liable for its equitable share of those costs. The vast majority of the costs incurred by Amland to date are for the remedial actions undertaken in an attempt to remove the PCBs from the Edgewater plant. As noted above, these remedial actions must have been consistent with the NCP in order for Amland to recoup from Alcoa the costs incurred thereby. Again, I am faced with impassioned disagreement between the parties: is strict compliance with the requirements of the NCP mandated, as Alcoa contends, see Deft’s Cross Motion Br. at 8—10; Deft’s CERCLA Reply Br. at 3-7, or is only “substantial” compliance necessary, in view of “the NCP’s specific, but flexible, requirements.” Plff’s Strict Liability Br. at 10. For the following reasons, I hold that the requirements of the NCP must be adhered to in order to permit a private party to recover its response costs, unless the party seeking recovery explains why a specific requirement is not appropriate to the specific site and problem. As an initial matter, Alcoa and Amland agree that the EPA’s interpretation of the NCP requirements is entitled to considerable deference. See Deft’s CERCLA Reply Br. at 1; Plff’s Strict Liability Br. at 9; Chemical Manufacturers Ass’n v. Natural Resources Defense Council, 470 U.S. 116, 125, 105 S.Ct. 1102, 1107, 84 L.Ed.2d 90 (1985) (“Th[e] view of the agency charged with administering the statute is entitled to considerable deference ... ”). In explaining the 1985 amendments to the NCP section defining how private party actions can be consistent with the NCP, the EPA stated as follows: [BJecause section 107 of CERCLA [42 U.S.C. § 9607] authorizes private cost recovery only for actions that are “consistent with” the NCP, EPA has an obligation, as promulgator of the NCP, to explain how private actions may be so consistent.... In this rule ... EPA has modified § 300.71 to specify in detail what private parties must do in order to act consistently with the NCP. 50 Fed.Reg. 47,934 (1985). To be consistent with the NCP for the purpose of cost-recovery under section 107 of CERCLA, [private party] responses must, as appropriate, address the full range of alternatives outlined in § 300.68(f), as well as comply with all other provisions of § 300.68(e) through (i). Such responses also must provide an opportunity for appropriate public comment. This public involvement must be consistent with § 300.67(d) ... Id. at 47,935. Courts applying § 9607 in the course of private party recoveries have read this language to mean that the NCP provisions must, when appropriate, be followed, and have accordingly measured private responses against the terms of the NCP. See Versatile Metals, 693 F.Supp. at 1576 (“[T]he failure to fulfill the more detailed procedural and substantive provisions of the NCP with regard to ‘remedial’ actions becomes a barrier to recovery of response costs”); Artesian, 659 F.Supp. at 1291-92 (“Congress plainly contemplated that the NCP would be a standard against which response actions would be judged appropriate or inappropriate in the first instance ... ”), 1294-97 (comparison of NCP requirements with plaintiff’s actions); BCW Associates, slip op. at 52 n. 3 (although NCP requirements “should not be applied in a Procrustean manner,” compliance “is [not] reducible to an inquiry into whether the clean-up was cost-efficient and environmentally sound,” citing 50 Fed.Reg. 47,934). Certainly, the EPA’s interpretation of the NCP and the caselaw deferring to that interpretation support my holding that private party responses to releases or threatened releases of hazardous substances are consistent with the NCP if they adhere to the specific requirements of the NCP, absent a showing that one or more of those requirements are inappropriate under the particular circumstances. Amland has not persuaded me otherwise.. The EPA is quoted by Amland as being of the view that the NCP “is not intended to provide complex, detailed, specific decision-making criteria.” Plff s Strict Liability Br. at 8 (quoting 50 Fed.Reg. 47,920). Accordingly, the argument goes, the NCP is to be applied flexibly. However, the quoted description of the NCP precedes the discussion of private party response cost recovery quoted earlier by fifteen pages and is, in fact, addressed to the wholly-distinct issue of the EPA’s definition of “relevant and appropriate requirements” at 40 C.F.R. § 300.6. See 50 Fed.Reg. 47,918. Thus, the only relevant EPA interpretation of the NCP sections authorizing private party recovery is the interpretation that 40 C.F.R. § 300.71 “specifies] in detail what private parties must do” in order to be consistent with the NCP. Amland also relies upon the Ninth Circuit’s decision in Wickland, supra, for the proposition that “response costs incurred by a private party may be ‘consistent with the [NCP]’ so long as the response measures promote the broader purposes of the plan.” 792 F.2d at 891; see Plff’s Strict Liability Br. at 7-8. When quoted in full, however, it is clear that this language in Wickland is dictum: On the other hand, these provisions [40 C.F.R. §§ 300.61-71] possibly do not constrain private parties seeking to recover response costs incurred under section 107(a) [of CERCLA]. Arguably, for example, section 107(a) does not require strict compliance with the national contingency plan; rather, response costs incurred by a private party may be ‘consistent with the national contingency plan’ so long as the response measures promote the broader purposes of the plan. 792 F.2d at 891. The court went on to hold that the issue (prior governmental approval of private responses) had been resolved by an EPA rule specifying that such approval was no longer required. Id. at 891-92. In a case decided by the same panel on the same day, the Ninth Circuit held that compliance with the NCP “does not necessitate strict compliance with its provisions.” NL Industries v. Kaplan, 792 F.2d 896, 898-99 (9th Cir.1986). This language, although broad, is tied to very narrow facts: all that the case held was that, in light of Wickland’s statement that governmental approval of private cleanups was not mandatory, the failure of a party to promptly report a release to the National Response Center — when that report was designed only to permit the government to approve the private response — did not render the response inconsistent with the NCP. Id. at 899. This is, in essence, a holding that the reporting requirement was no longer appropriate, and should no longer be required. It is not a holding that, where a requirement of the NCP is appropriate, a party is free to substitute its own conception of an equivalent course of conduct for that requirement. As such, I do not find Wickland and NL Industries to support the “substantial compliance” standard proposed by Amland and, to the extent those cases require that result, I choose not to follow them. Having determined that Amland must, where appropriate, comply with the requirements of the NCP in order to recover its response costs, I turn to examine those requirements. 40 C.F.R. § 300.71(a)(2)(h) states that a remedial action will be consistent with the NCP if the party (A) Provides for appropriate site investigation and analysis of remedial alternatives as required under § 300.68; (B) Complies with the provisions of paragraphs (e) through (i) of § 300.68; (C) Selects a cost-effective response; and (D) Provides an opportunity for appropriate public comment concerning the selection of a remedial action consistent with paragraph (d) of § 300.67 unless compliance with the ... appropriate State and local requirements ... provides a substantially equivalent opportunity for public involvement in the choice of remedy. Amland contends that the requirement of compiling a Remedial Investigation/Feasibility Study (hereinafter “RI/FS”), set forth in 40 C.F.R. § 300.68(d), is inapplicable to a private party response, in that the section quoted above makes reference only to § 300.68 generally and to § 300.69(e)-(i) specifically. See Plff’s Strict Liability Br. at 11. This contention was rejected in Versatile Metals, 693 F.Supp. at 1539 (“Section 300.68(d) describes the necessary study” to be prepared by a private party) and in Artesian, 659 F.Supp. at 1296. Similarly, the EPA has concluded that “[f]or remedial actions, the most important factors that contribute to the final selection of a remedy are the scoping of response actions, the development of alternatives, and the detailed analysis of alternatives during the RI/FS.” 50 Fed.Reg. 47,935. Moreover, Amland is specifically required to comply with § 300.68(e)-(i), which sections make repeated reference to the RI/FS requirement of § 300.68(d). I, therefore, conclude, as did the Versatile Metals and Artesian courts, that the RI/FS requirement applies to private party actions. The RI/FS shall “determine the nature and extent of the threat presented by the release and ... evaluate proposed remedies.” 40 C.F.R. § 300.68(d). The process is described in §§ 300.68(e)-(i). The RI process commences with the scoping of response actions, which is designed to determine “the type of response that may be needed to remedy the release.” Id. § 300.68(e)(1). “Initial analysis shall indicate the extent to which the release or threat of release may pose a threat to public health or welfare or the environment, indicate the types of removal measures and/or remedial measures suitable to abate the threat, and set priorities for implementation of the measures.” Id. In so doing, the RI process “shall, as appropriate,” take into account fifteen specifically enumerated factors “in determining whether and what type of remedial and or removal actions will be considered.” Id. § 300.68(e)(2). The next step commences the FS process: “[t]o the extent that it is both possible and appropriate, at least one remedial alternative shall be developed as part of the feasibility study in each of [five listed] categories.” Id. § 300.68(f)(1). Each alternative is to be screened according to the “broad criteria” of cost, acceptable engineering practices, and effectiveness. Id. § 300.68(g)(l)-(3). “When an alternative is eliminated in screening, the rationale shall be documented in the feasibility study.” Id. The alternatives that survive this screening process are then to be subjected to a “more detailed analysis,” taking into account, as appropriate, “refinement and specification of the alternatives,” “detailed cost estimation,” “evaluation [of] engineering implementation,” evaluation of each alternative’s efficacy, “analysis of ... advanced, innovative or alternative technologies,” and “analysis of any diverse environmental impacts.” Id. § 300.68(h)(2)(i)-(vi). The final RI/FS section requires “selection of a cost-effective remedial alternative that effectively mitigates and minimizes threats to and provides adequate protection of the public health and welfare and the environment.” Id. § 300.68(i). Amland’s response to the release of PCBs may be divided into two components: the means by which Amland established the standard of cleanup (i.e., how clean the Edgewater plant was to be made), and the means by which Amland chose the remedial method that would achieve that standard. Both of these must be measured against the procedural and substantive requirements of the NCP. In so doing, I find that although the cleanup standard, as determined by DEP, was consistent with the NCP, the remedial methods have not been shown to be in compliance with the NCP. I turn first to the cleanup standard set for the Edgewater plant. As set out above, DEP initially required of Amland that it achieve a cleanup level of zero ppm of PCBs at surface level, and 5 ppm below surface. The final ACO, however, set levels of 1 ppm for the surface and 5 ppm for below-surface. Compare Plffs Supp.App., Tab 35 at ¶ 16 (proposed ACO) with Plffs App., Tab 4 at ¶ 13A (final ACO). It appears clear from the record before me that, in setting this standard, DEP took into account Amland’s planned use of the site as a residential area. See York/Hunter Minutes of Meeting of June 6, 1985, at ¶ 4 (“NJDEP stated that use of land for residential use is higher than that of ECRA [Environmental Cleanup Responsibility Act, N.J.S.A. 13.TK-6, governing transfer of industrial facilities] land requirements”) (attached at Plffs App., Tab 75); Del Bene Dep. 27:8-10 (“I believe that the State did have a heightened awareness that this building was proposed for a residential use....”) (attached at Plffs App., Tab 77); Final ACO, ¶ 1 (finding that Amland planned to use Edge-water site for residential homes). For purposes of Alcoa’s summary judgment motion, I will accept its statement that “the approach required by the NCP,” with regard to the setting of a cleanup standard, involves consideration of the proposed end use of the property. Deft’s CERCLA Reply Br. at 21 n. 29; see Plff’s Supp.App., Tab 36 at 18-19 (EPA Superfund record of decision, taking into account possible exposure if property is later used as light industrial factory). In that light, Alcoa has given me no reason to believe that DEP’s cleanup standard, which took into account Amland’s intention to transform the Edgewater plant into residential units, would be any different from a cleanup standard established pursuant to the NCP, which requires consideration of proposed property use. See 40 C.F.R. § 300.68(e) (during RI process, “[ijnitial analysis shall, as appropriate, also provide a preliminary determination of the extent to which ... other Federal criteria, advisories, and guidance and State standards are to be used in developing the remedy”). Accordingly, I find that the cleanup standard set by DEP — 1 ppm surface, 5 ppm below-surface — was set consistently with the NCP. With respect to the remedial method arrived at to achieve the DEP-imposed cleanup standard, Amland must again demonstrate compliance with the NCP. Initially, Amland was required to “comp[ly] with the provisions of paragraphs (e) through (i) of § 300.68.” 40 C.F.R. § 300.7l(a)(2)(ii)(B). Section 300.68(e)(2) lists fifteen factors which, for private party actions, “shall, as appropriate, be assessed in determining ... what type of remedial ... action will be considered.” Of these, Amland has claimed to have taken into account five of the listed factors: § 300.68(e)(2)(i) (population at risk); (e)(2)(ii) (routes of exposure); (e)(2)(iii) (amount, concentration, and form of hazardous substances); (e)(2)(xii) (determination of applicable state standard); (e)(2)(xiii) (extent to which -contamination levels exceed standard). See Plff’s Strict. Liability Br. at 13-15, n. 10, 12-13, 15, 18. The factors not considered by Amland include § 300.68(e)(2)(iv) (hydrogeological factors, such as soil permeability); (e)(2)(v) (current and potential groundwater uses); (e)(2)(vi) (climate); (e)(2)(vii) (extent to which source can be identified); (e)(2)(ix) (likelihood of future releases); (e)(2)(x) (adequacy of natural or man-made barriers); (e)(2)(xi) (extent of migration of substance); and (e)(2)(xiv) (air, land, water, and/or food chain contamination). Amland excuses this non-consideration by simply observing that “[consideration of the remaining factors listed as part of the site investigation was not ‘appropriate’ or necessary,” specifically citing only § 300.68(e)(2)(iv)-(vi). See Plff s Strict Liability Br. at 15 n. 18. Without explanation as to why the remaining eleven factors to be considered in the scoping process of 11300.68(e) were irrelevant, I cannot find that Amland has demonstrated that those factors were not “appropriate” to the cleanup of the Edgewood plant. The next step in the process, the development of alternatives, requires that, as appropriate, remedial alternatives be developed in' each of five listed categories. 40 C.F.R. § 300.68(f)(1). The only category in which an alternative was developed by Am-land was § 300.68(f)(1)(h), which calls for alternatives that attain the applicable remedial standard. See Plff’s Strict Liability Br. at 16 and n. 23. Amland maintains that two of the remaining categories, § 300.68(f)(l)(i) (treatment at off-site facility), see Plff’s Strict Liability Br. at 17 n. 28, and (f)(l)(v) (no-action alternative), see Plff’s Strict Liability Br. at 16 n. 22, are inapplicable. While the DEP’s action in setting (and seeking to enforce) a cleanup standard may have precluded a no-action alternative, it is unclear why treatment of certain contaminated objects at an off-site facility would be an inappropriate alternative. Moreover, Amland provides no reason why the remaining viable category — alternatives that exceed the applicable standard, § 300.68(f)(l)(iii) — was not studied. Amland was next required to conduct the initial screening of the alternatives developed under. § 300.68(f), according to the criteria of cost, acceptable engineering practices, and effectiveness. 40 C.F.R. § 300.68(g). The alternatives screened by Amland assertedly included encapsulation, Plff’s Strict Liability Br. at 15-16, use of solvents and microwaves, id. at 16-17, and removal, scarification, and decontamination (the methods ultimately utilized). Id. at 17. The studies submitted to me indicate that Amland tested cleaning surfaces with water and sand, water and surfactant, and dry sand blasting, see Plff’s Supp.App., Tab 41, and that it planned to conduct a test of cleaning with microwaves. Id., Tab 42. Although these studies may comport with §§ 300.68(g)(2) and (g)(3), which require consideration of engineering practices and effectiveness, neither study addresses the cost-effectiveness factor of § 300.68(g)(1). In addition, none of the remedial alternatives listed above was subjected to the detailed analysis of §§ 300.68(h)(2)(i)-(vi), an issue not addressed in Amland’s submissions. Finally, as to the alternatives not adopted by Amland, such as the use of solvents and microwaves, no documentation is provided as to why those alternatives were not chosen; rather, all that is submitted is an affidavit stating that “the technology for such use was not proven.” Brecher Aff., If 15. More than this is required to enable a reviewing court to determine the reasonableness of that determination. See 40 C.F.R. § 300.68(g)(1) (“When an alternative is eliminated in screening, the rationale shall be documented in the feasibility study”); BCW Associates at 52 n. 3 (noting importance of documenting “why [plaintiffs] chose the response action they did”). Finally, Amland was required to provide an opportunity for public comment concerning the remedial action to be selected. 40 C.F.R. § 300.71(a)(2)(ii)(D). The NCP mandates that feasibility studies that outline alternative remedial measures must be provided to the public for review and comment for a period of not less than 21 calendar days. Such review and comment shall precede selection of the remedial response. Public meeting(s) shall, in most circumstances, be held during the comment period. Id., § 300.67(d). The public comment requirement pertains to all response costs incurred subsequent to February 18, 1986, see Versatile Metals, 693 F.Supp. at 1577, a date seven months prior to the signing of the final ACO by Amland. It is undisputed that no public review and comment period took place here. Amland makes two arguments in an attempt to justify that absence. First, it contends that the participation of state and local officials, and the participation of DEP in the standard-setting process, obviated the need for a public comment period. See Plff s Strict Liability Br. at 21, 23. However, the NCP itself mandates that, even when a cleanup is being conducted by EPA or a state agency such as DEP, a public comment period be implemented. See 40 C.F.R. § 300.67(d). Moreover, because the cleanup was a result of negotiations between DEP and Amland, rather than the result of a duly promulgated (and therefore commented upon) state regulation, the public had no opportunity to comment on either the cleanup standard or the remedial methods to be employed. I also reject Amland’s second argument that, because Alcoa had an opportunity to comment upon Amland’s proposed response action, it has no standing to complain of the lack of a public comment period. See Plff’s Strict Liability Br. at 22-23. It is Amland’s burden to demonstrate compliance with the regulatory framework, and Alcoa, as a party sought to be held liable pursuant to that framework, will be heard as to any aspect of Amland’s alleged non-compliance. The foregoing discussion makes clear that Amland has failed to do that which the NCP requires, and has failed to come forward with sufficient reasons why that failure should be excused. Thus, although I find that Amland’s initial monitoring and evaluation costs after April 1985 are recoverable, the remaining response costs incurred by Amland are not. As noted by the Artesian court: Congress did not intend for CERCLA, a narrowly drawn federal remedy, to make injured parties whole or to be a general vehicle for toxic tort actions. Unless Congress sees fit to provide such a remedy, full compensation for hazardous waste harms will in most instances remain the province of state law. 659 F.Supp. at 1299-1300. It is to New Jersey law that I now turn my attention. B. Common Law Claims Amland brings four pendent state law claims against Alcoa, sounding in strict liability, private nuisance, public nuisance, and negligence. Amland seeks summary judgment as to the first of these, and Alcoa seeks summary judgment as to all four. For the reasons that follow, both motions will be denied as to the strict liability claim, and Alcoa’s motion will be granted as to the remaining claims. 1. Strict Liability Amland asserts that, under State Dep’t. of Environmental Protection v. Ventron, 94 N.J. 473, 468 A.2d 150 (1983), and its progeny, Alcoa’s operations at the Edge-water plant, and the condition in which it left that plant, were abnormally dangerous and give rise, as a matter of law, to strict liability. Alcoa, on the other hand, contends that strict liability has no application where, as here, a vendee seeks to recover from a remote vendor for the vendor’s activities on the property. Moreover, it contends that if strict liability is applicable here, the determination as to whether its activities were abnormally dangerous cannot now be decided as a matter of law. For the following reasons, I find that the concept of abnormally dangerous activity applies as between successive landowners, that the activity here must be measured in light of the relevant strict liability factors (rather than as a matter of law), and that summary judgment is not appropriate at this time. Alcoa argues that it cannot be held liable for even abnormally dangerous activities by Amland, a subsequent purchaser of the property. See Deft’s Cross-Motion Br. at 27-29. I begin my discussion by recounting the facts underlying the Appellate Division’s decision in T & E Industries, Inc. v. Safety Light Corp., 227 N.J.Super. 228, 546 A.2d 570 (App.Div.1988), a ease to which I attribute significant weight. From 1917 through 1926, defendant’s corporate predecessor operated a radium-processing facility on the site in question, and buried radioactive waste on that property. 227 N.J.Super. at 231, 546 A.2d 570. Fifty years later, plaintiff purchased the property, with no knowledge of the presence of radioactive waste. The T & E court first held that, as a matter of law, the deposit by defendant’s predecessor of the radioactive waste on the property was an abnormally dangerous activity. Id. at 239-40, 546 A.2d 570. Next, the court rejected defendant’s argument that the principles of Ventrón apply only to instances of interference with a neighbor’s property, and not to instances of harm to successive landowners. Id. 227 N.J.Super at 241, 546 A.2d 570. In rejecting this distinction, the court observed that it saw “no practical or legal distinction between the rights of a successor in title to use and enjoy its land and the rights of a neighboring property owner.” Id. The court then continued as follows: Of course, the rights of the parties in the sale of real estate can be fixed and adjusted by contract. But here, we are dealing with an innocent purchaser which had no notice of the contaminated condition of the property, a latent defect. We are not addressing the question of fraud but merely stating that the liability may be altered by contract in appropriate circumstances. Id. In cases involving abnormally dangerous activities, “[t]he party who creates such a[n abnormally dangerous] condition is absolutely liable and cannot avoid that responsibility unless a purchaser knowingly accepts that burden.” Id. at 242, 546 A.2d 570. Accordingly, because the purchasers in T & E did not purchase the property with knowledge that radioactive contaminants were present, the disposers of those contaminants—the remote vendors of the property—were held strictly liable. Alcoa argues that T & E “recognized the traditional defense to the imposition of strict liability—assumption of the risk.” Deft’s Common Law Reply Br. at 9. Because, the argument continues, Amland inspected the Edgewater plant and chose, despite warning, not to test for PCBs, Am-land is not the “innocent purchaser” contemplated by the court in T & E, and assumed the risk that a toxic contaminant might be present at the site. Id. at 10-11. It is clear, however, that assumption of the risk in strict liability actions can be raised as a defense only “where a plaintiff with actual knowledge of the danger presented by the defective product knowingly and voluntarily encounters that risk.” Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 158, 406 A.2d 140 (1979); See Colella v. Safway Steel Products, 201 N.J.Super. 588, 591, 493 A.2d 634 (Law Div.1985) (contributory negligence available only when “plaintiff voluntarily and unreasonably encounters a known risk”); Restatement (2d) of Torts, § 523, comment c (regarding strict liability, “the plaintiff does not assume the risk unless he knows of its existence”). “[T]he ordinary contributory negligence of the plaintiff in failing to discover an abnormally dangerous activity or to take precautions against it is not a defense to the strict liability of the actor who carries it on.” Id. at comment a; see Suter, 81 N.J. at 158, 406 A.2d 140. Because the most that can be said here is that Amland negligently did not discover the presence of PCBs, and because it certainly cannot be said that Amland knew of the PCBs when it purchased the Edgewater plant, Alcoa may not raise assumption of the risk as a defense to liability. Alcoa urges me not to follow the holding of T & E that strict liability for abnormally dangerous activities may be applied as between successive landowners. It asserts that the T & E court incorrectly stated that “no practical or legal distinction” exists as between neighboring landowners and successive landowners vis-a-vis their rights to the enjoyment of their land. Deft’s Common Law Reply Br. at 15. Alcoa points to the following distinction: A subsequent purchaser can protect itself concerning the condition of the property by, among other things, inspection of the property before purchase (to dete