LITIGATION UPDATE: Writ of Certiorari filed in Solutia, Inc. v. McWane, Inc.
Recently, Solutia Inc. and Pharmacia Corporation filed a petition for writ of certiorari with the U.S. Supreme Court seeking to overturn the Eleventh Circuit’s ruling that a Potentially Responsible Party (“PRP”) conducting a cleanup pursuant to a consent decree is foreclosed from bringing a cost recovery action against other PRPs under CERCLA Section 107, and may only seek contribution from other parties under CERCLA section 113. This ruling is significant because 1) unlike CERCLA section 107, section113 does not provide for joint and several liability against other PRPs, 2) under CERCLA section 113, PRPs that settle with the government are given contribution protection, and 3) the statute of limitations under section 107 and section 113 differs.
As previously blogged, the Solutia case highlights that a PRP must carefully consider the order in which it resolves CERCLA liability because settling with an oversight agency prematurely may foreclose a PRP’s ability to obtain CERCLA contribution from other settling PRPs. In its petition to the Supreme Court, Solutia observes that the issue over when cost recovery and contribution claims are available to PRPs that have entered into consent decrees “is causing confusion among lower courts and environmental attorneys and their clients.” A response to the petition was filed by Huron Valley Steel Corp. yesterday.