776 F. Supp. 2d 857
E.D. Wis.2011Background
- Plaintiffs NCR and Appleton Papers are CERCLA PRPs facing contribution claims by numerous defendants related to the Lower Fox River PCB contamination.
- OU1 (Little Lake Butte des Morts) upstream pollution was caused by other entities; OU2-OU5 (downstream Green Bay area) involved NCR/Appleton discharges via production of carbonless copy paper.
- Defendants seek contribution for OU1 and OU2-OU5 costs; plaintiffs previously were denied contribution for OU1 absent arranger liability.
- The court must determine arranger liability under CERCLA § 9607(a)(3) and whether divisibility or other equity factors affect contribution for OU1.
- Court previously held that divisibility is not a defense to §113 contribution, but equitable factors may affect allocation among sites.
- The court awards full contribution for OU2-OU5 to Defendants, denies OU1 contribution absent arranger liability, grants United States’ motion, and stays some rulings pending a consent decree for Green Bay/Brown County.
- Summary-judgment posture expedited; several motions resolved or stayed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Arranger liability under CERCLA § 9607(a)(3) | ACPC's broke was disposed of by recycling; NCR/Appleton argue they lacked the intent to dispose into OU1. | ACPC/Appleton discharged with intent to dispose of hazardous waste, making NCR/Appleton arrangers. | Arranger liability is a fact-intensive issue; denied for OU1 at this stage. |
| Divisibility as a defense to contribution | OU1 costs should be non-recoverable due to divisibility since NCR/Appleton did not release PCBs into OU1. | Divisibility is a relevant equitable factor; entire site liability should be allocated. | Divisibility is not a defense in §113 action, but equity-based consideration limits OU1 liability; OU2-OU5 awarded. |
| Extent of defendants' entitlement to contribution for OU2-OU5 | Plaintiffs argue equitable factors should limit defendants' claim or bar contribution. | Defendants claim full contribution for OU2-OU5 given fault/allocation in total site cleanup. | Defendants entitled to full contribution for OU2-OU5 costs. |
| Statute of limitations on contribution claims | Several costs predate tolling and may be time-barred. | tolling agreements and lack of triggering events prevent applying a three-year clock; six-year period may apply. | No basis to bar FRG/other costs; limitations disputes unresolved but contributions for OU2-OU5 allowed. |
| Prospective relief for future costs | Want declaratory relief that contribution will apply to future costs. | Certainty promotes efficiency; future costs should be addressed by allocation. | Summary judgment granted for future costs to Defendants for OU2-OU5, subject to proper recoverability; OU1 future costs depend on arranger finding. |
Key Cases Cited
- Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489 (11th Cir.1996) (divisibility not a defense in §113 contribution)
- Environmental Transportation Systems, Inc. v. ENSCO, Inc., 969 F.2d 503 (7th Cir.1992) (totality-of-circumstances approach to equitable allocation)
- G.J. Leasing v. Union Elec. Co., 54 F.3d 379 (7th Cir.1995) (sale of a product containing hazardous substance not per se disposal liability)
- New York v. Solvent Chemical Co., Inc., 685 F.Supp.2d 357 (W.D.N.Y.2010) (overarching goal to allocate cleanup costs by fault and equities)
- Friedland v. TIC-The Indus. Co., 566 F.3d 1203 (10th Cir.2009) (collateral-source-like considerations in CERCLA allocations)