Yesterday, a judge in the Eastern District of Wisconsin reversed his own ruling and held that NCR Corporation’s liability for the cleanup of polychlorinated biphenyls (PCBs) at the Fox River Superfund Site was not subject to divisibility.  Last May, the court held that NCR had proven that the environmental harm in Operable Unit 4 of the Site was capable of apportionment and could be reasonably apportioned based on NCR Corporation’s contribution of PCBs to this area.  In its May decision, the court held NCR liable only for its portion of the costs and determined NCR was not jointly and severally liable for all the costs of cleaning up PCBs in Operable Unit 4 (OU4).  That ruling upheld NCR’s “divisibility defense” to joint and several liability.  After yesterday’s decision, however, NCR is once again jointly and severally liable for all cleanup costs at OU4.
Continue Reading Judge Rejects NCR Fox River Divisibility Defense in Reconsideration

On May 15, 2015, the United States District Court for the Eastern District of Wisconsin held that a defendant successfully established a divisibility defense in a government enforcement action dealing with the cleanup of the Fox River Superfund Site in northeastern Wisconsin (the Site).  United States v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, 2015).  The ruling appears to be the first district court decision to uphold a divisibility defense under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) since the Supreme Court’s 2009 decision in Burlington Northern.  It remains to be seen whether this is an indication of how courts will address divisibility going forward.
Continue Reading CERCLA Divisibility Defense Is Alive and Well

On September 25, 2014, the Seventh Circuit issued two opinions in litigation related to the Fox River Superfund site in Wisconsin.  The Fox River is a sediment site contaminated primarily with polychlorinated biphenyls (PCBs) from the paper making industry.  In one of these decisions, the Seventh Circuit held that, based on evidence at trial, the environmental harm to the Fox River was theoretically capable of being apportioned among the potentially responsible parties (PRPs), and that a permanent injunction was not an appropriate remedy for enforcing a Unilateral Administrative Order (UAO) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  U.S. v. P.H. Glatfelter Co., No. 13-2436, 13-2441 (7th Cir. Sept. 25, 2014).
Continue Reading Seventh Circuit Finds Environmental Harm ‘Theoretically Capable’ of Apportionment