SUPREME COURT:

Justices won't hear Ala. Superfund dispute

The Supreme Court today opted not to hear a dispute over the amount various parties have to pay as part of a Superfund cleanup in Alabama.

Solutia Inc., a subsidiary of Eastman Chemical Co., and Pharmacia, a subsidiary of Pfizer Inc., are the successor companies to the original owners of a chemical plant in Anniston, Ala. Among the chemicals produced at the site between 1929 and 1981 were polychlorinated biphenyls, commonly known as PCBs.

The companies have been involved in efforts to clean up the site since the late 1960s, but the legal dispute in court concerns land around the plant, both residential and commercial.

Solutia and Pharmacia, the latter then operating as Monsanto Co., wanted the owners of some of those sites -- including Huron Valley Steel Corp., Walter Energy Inc. and McWane Inc. -- to contribute to the cleanup, based on the claim that they, too, had discharged and disposed of PCBs and other chemicals over the years. The Superfund law, the Comprehensive Environmental Response, Compensation and Liability Act, allows for liability to be portioned out among responsible parties.

The legal question was whether companies subject to a consent decree in federal court can file claims for cost recovery against other companies or whether they can only file "contribution" claims under a different section of the statute.

In 2002, Solutia and Pharmacia entered into a consent decree with U.S. EPA, in which they reserved the right to seek contributions from other parties. They also sued the various companies they believed should pay for their part in the contamination.

Then, in 2005, those same companies reached an agreement with EPA, in which they paid $3.25 million for past response costs and agreed to several other conditions. As part of the arrangement, Solutia and Pharmacia say, the companies were able to negotiate immunity from potential recovery claims.

Solutia and Pharmacia said Supreme Court review of the 11th U.S. Circuit Court of Appeals ruling that upheld the agreements with EPA is necessary because "cost recovery under CERCLA is an issue of exceptional importance relevant to the fundamental goal of CERCLA of encouraging private party cleanups."

In response, the various companies contesting the claims said the conclusion reached by the 11th Circuit "has been embraced by every court of appeals to decide the question."

Rena Steinzor, a law professor at the University of Maryland School of Law, said she was "not at all surprised" the Supreme Court declined to hear the case.

"It seems like a straightforward application of long-established principles regarding the practical effects of settlements with the government," she added.

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