Fla. Power Corp. v. FirstEnergy Corp.
After discovering hazardous contaminants at Sanford and Orlando coal gasification plants in the 1990s, the EPA concluded that Florida Power and previous owners were liable for costs of removal and remediation. In 1998 and 2003, Florida Power entered into “Administrative Order by Consent for Remedial Investigation/Feasibility Studies” (AOCs) with the EPA for the sites, under which Power agreed to conduct studies to determine the public safety threat and evaluate options for remedial action. Power agreed to pay the EPA about $534,000 for past response costs at the sites. After the investigation and study at the Sanford site, the EPA entered Records of Decision. In 2009, the court approved a consent decree for actual performance of the Sanford remediation. Regarding the Orlando site, Power submitted a draft Remedial Investigation Report, Risk Assessment, and Remedial Alternative Technical Memorandum that was under EPA review when, in 2011, Power filed this cost recovery and contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 42 U.S.C. 9601) against a successor to a former owner-operator of the sites. The court dismissed, finding that the 1998 and 2003 AOCs were “settlement agreements” and triggered CERCLA’s three-year statute of limitations. The Sixth Circuit reversed, finding that the AOCs did not constitute “administrative settlements.” View "Fla. Power Corp. v. FirstEnergy Corp." on Justia Law