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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).

The Western District of Washington Leaves a PRP without a Remedy, but Upholds the Broader Policy Objectives of CERCLA.

The Western District of Washington also recently followed the holding from the Aviall case. See Port of Tacoma v. Todd Shipyards Corp., 2009 U.S. Dist. LEXIS 5884 (W.D.Wa., January 14, 2009). The Port of Tacoma sued Todd Shipyards in a contribution action under CERCLA § 113(f) for recovery above an equitable share of costs the Port incurred in remediating the subject Superfund site, which had been used for shipbuilding operations during World War I and World War II, pursuant to a consent decree with the United States. 

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