Source: http://www.lexology.com, May 17, 2013
By: David Erickson and Mark Anstoetter, Shook Hardy & Bacon LLP
A federal court in Wisconsin has ruled that a defendant in a cost-recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) failed to establish that the harm at issue was divisible and thus could not limit its liability. United States v. NCR Corp., No. 10-C-910 (E.D. Wis. 5/1/13).
The United States and Wisconsin sued several paper manufacturers and coating companies, all of which allegedly discharged polychlorinated biphenyls (PCBs) into the Lower Fox River sometime between 1954 and the 1970s. Defendant NCR, which had been funding the remedy under a U.S. Environmental Protection Agency (EPA) unilateral order, asserted that its contribution to the PCBs in the river could be apportioned separately and that it should not be held jointly and severally liable for the contamination.
Ignoring questions of total PCB concentrations and focusing strictly on whether river bed sections would require remediation using EPA’s 1 part per million trigger, the court held that NCR had not established that the remediation would have been significantly smaller in scope had NCR been the only discharger. The court also rejected NCR’s evidence and analysis regarding the total mass of PCBs it contributed versus PCBs contributed by other defendants. Thus, according to the court, NCR failed to demonstrate that its liability could be apportioned. The court similarly rejected the suggestion of several other defendants that their contributions were severable. The court granted the plaintiffs an injunction requiring all the liable defendants to perform the work called for in EPA’s unilateral order.