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Florida Power Corp. v. FirstEnergy Corp.

ELR Citation: 45 ELR 20212
Nos. 14-4126, (6th Cir., 11/05/2015)

The Sixth Circuit held that two administrative orders on consent (AOCs) that a power company entered into with EPA in connection with two coal gasification plants owned and operated by its predecessor in interest nearly 70 years ago do not constitute "administrative settlements" under CERCLA. Under the AOCs, the company agreed to conduct and implement a remedial investigation and feasibility study for each site. The lower court held that the AOCs were administrative settlements that triggered CERCLA's three-year statute of limitations. Because the AOCs were entered in 1998 and 2003, but the company didn't file its contribution action until 2011, the court dismissed the case. But the appellate court reversed. The AOCs did not resolve the company's liability to the EPA. Rather, the AOCs expressly condition EPA's covenant not to sue on the company's "complete and satisfactory performance" of the AOCs and broadly reserve EPA's rights until the company's obligations under the AOCs are satisfied.