According to the Second Circuit Court of Appeals, a CERCLA consent decree does not require EPA approval for the settling party to seek response and cleanup costs under section 113 based on the settlement. Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 08-3843 (2d Cir. 02/24/10). The district court had dismissed the contribution claims because EPA had never given the New York Department of Environmental Conservation (NYDEC) the express authority to approve a CERCLA settlement agreement with the company.

Reversing the district court and reinstating the section 113 contribution action, the appeals court ruled that the 2003 consent decree between the company and NYDEC “qualifies as an administrative settlement of liability for purposes of CERCLA pursuant to the plain text of Section 113(f)(3)(B).” The court relied in part on a U.S. Department of Justice brief arguing, “[i]t is important that PRPs … that agree to engage in response activities in settlements with states have appropriate CERCLA claims for contribution against other PRPs. Otherwise, PRPs will decline to enter into administrative settlements and instead wait for the filing of civil actions to ensure they can sue for contribution under Section 113(f)(1).”

Plaintiff had also asserted a section 107 cost recovery action against defendants as an alternative in the event the court agreed with the district court that no section 113 cause of action was available. Citing U.S. v. Atlantic Research Corp., 551 U.S. 128 (2007), the court held, “only § 113 (f)(3)(B) provides the proper procedural mechanism for [plaintiff’s] claims.”