Pillsbury Winthrop Shaw Pittman LLP
Anthony B. Cavender
November 12, 2015
Contractors should beware that the Sixth Circuit’s guidance on CERCLA-related topics continues to be murky, including, in particular, what constitutes a CERCLA settlement triggering the running of the 3-year limitations period for contribution claims. On November 5, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in the case of Florida Power Corp., dba Progress Energy Florida, Inc., v. FirstEnergy Corp., interpreting two Administrative Orders by Consent for Remedial Investigation/ Feasibility Study (AOCs). The Court of Appeals held that the AOCs were not CERCLA settlements and, as a result, Florida Power’s contribution claims were not untimely. There is a significant dissent in this case, and all of the judges appear to agree that the Sixth Circuit’s decisions in this area have not provided adequate guidance to the regulated community.
Florida Power’s predecessor owned and operated two coal gasification plants in Florida which became subject to the cleanup and remedial investigation provisions of CERCLA (a.k.a a Superfund). Florida Power entered into separate AOCs and also paid EPA’s past response costs. EPA issued three Records of Decision for one site and a Consent Decree requiring the agreed cleanup was approved by the local federal court in 2009. EPA’s action on the second site is apparently still awaiting final agency action.