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11th Circuit Decision Follows that of Niagara v. Mohawk: Under CERCLA, Parties Who Enter Into Consent Decree with Government Are Limited to a § 113(f) Contribution Claim

Since the Second Circuit Court of Appeals decided Niagara Mohawk Power Corp v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010), a number of other Circuits have followed the Second Circuit's holding that parties who enter into a consent decree with the U.S. Environmental Protection Agency ("EPA") following an EPA enforcement action and then seek recovery of cleanup costs from other potentially responsible parties ("PRPs") are limited to a contribution claim under § 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); they may not bring a cost recovery action under § 107(a) of CERCLA for those same costs. See, e.g., Morrison Enter., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010). See also Periconi, LLC Environmental Law Blog, here, here, and here for a summary of the Niagara Mohawk case. The most recent decision in line with the Second Circuit is the Eleventh Circuit's decision in Solutia, Inc. v. McWane, Inc., Case No. 10-15639 (11th Cir. Mar. 6, 2012).

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