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Sep 2012
25
September 25, 2012

No Apportioning Liability in River Cleanup


In a case demonstrating the rarity of apportionment of liability under CERCLA, a federal appeals court ordered NCR Corporation to continue cleaning up the PCB-contaminated Fox River in Wisconsin. The case shows the difficulty in obtaining a ruling allowing a CERCLA plaintiff to apportion liability.

On August 3, 2012, the U.S. Court of Appeals for the Seventh Circuit upheld the U.S. District Court for the Eastern District of Wisconsin’s grant of a preliminary injunction ordering NCR to complete $70 million in remediation work to clean up PCB-contaminated sediment in the lower Fox River.

NCR had already performed a significant amount of cleanup, and in 2011 NCR decided that it would no longer comply with a 2007 unilateral order from the U.S. EPA requiring additional cleanup through 2012.  The EPA then sought an injunction requiring NCR to undertake the work set out in the unilateral order.

NCR argued that that the harm to the river could be divided such that NCR could not be required to clean up more than the contamination that it caused.  Such “apportionment” of liability is relatively rare and difficult to establish compared to the more typical equity-driven “allocation” of damages in contribution cases among jointly and severally liable parties.

NCR nonetheless claimed that apportionment was proper because it had already performed more than its share of the cleanup.  In particular, it claimed that expert reports supported a conclusion that NCR was liable for only 9% of the total cost of cleanup, which was much less than what it had already paid. The District Court disagreed and issued a preliminary injunction based in part on its finding that the harm was not reasonably capable of apportionment.

The Seventh Circuit held that the District Court did not err in concluding that harm to the Fox River was not reasonably capable of apportionment.  The conclusion was proper under the governing test in the Restatement (Second) of Torts based on the District Court’s finding—supported by an unrefuted contention by the United States—that the contamination caused by NCR would itself require approximately the same amount of cleanup as would be needed to address PCB contamination from all sources along the river. “[E]ven if NCR contributed no more than 10% of the PCBs, that 10% would require remediation.  It was NCR’s burden to show otherwise, and it failed to do so.”

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