NCR Corp. v. George A. Whiting Paper Co.
2014 U.S. App. LEXIS 18441
| 7th Cir. | 2014Background
- NCR manufactured carbonless copy paper using Aroclor 1242, a PCB solvent, during 1954–1971.
- PCBs from NCR and related mills contaminated the Lower Fox River, prompting CERCLA cleanup orders.
- EPA and WDNR targeted operable units 2–5 for dredging and capping to contain PCBs.
- NCR sought contribution from other PRPs (recycling mills) under CERCLA §113(f).
- District court initially held NCR liable for none of the costs and denied contributions; the Seventh Circuit reversed in part and remanded for a fuller record.
- Key issue is equitable allocation of cleanup costs among PRPs under CERCLA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of recovery under CERCLA §113(f) vs §107(a) | NCR seeks §107(a) recovery for its costs. | §113(f) governs contributions among PRPs. | §113(f) governs contribution; §107(a) not available where §113(f) applies. |
| Appvion's party status and recovery path | Appvion seeks §107(a) recovery as a non-PRP indemnitor. | Appvion is an indemnitor/subrogee; no direct §107(a) recovery. | Appvion may pursue §107(a) as a former PRP, not limited by indemnity. |
| Arranger liability for NCR | NCR’s predecessor Appleton Coated arranged disposal via broke sales. | Arrangement requires more than mere sale; intent and control matter. | Appleton Coated not arranger under CERCLA §107(a)(3) given lack of control over disposal. |
| Insurance offsets in contribution | Glatfelter's settlement should offset NCR’s share. | Collateral source rule not apply; credits may be appropriate. | Collateral source rule does not apply; district court’s framing of offsets was not an abuse of discretion. |
| Natural resource damages and contribution | Defendants liable for natural resource damages under §107(a); contribution available. | NCR not liable for NRDs or not appropriately included in §113(f). | NRD contribution available; NCR could be liable for NRDs consistent with CERCLA. |
Key Cases Cited
- United States v. Atlantic Research Corp., 551 U.S. 128 (U.S. 2007) (clarified §107(a) vs §113(f) relationship and cost recovery)
- Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (U.S. 2009) (arranger liability limits when disposal is peripheral to sale of useful product)
- Chubb Custom Ins. Co. v. Space Systems/Loral, Inc., 710 F.3d 946 (9th Cir. 2013) (indemnitor costs and CERCLA remedies; stay within §113(f) framework)
- Friedland v. TIC-The Industrial Co., 566 F.3d 1203 (10th Cir. 2009) (collateral-source-like offset considerations in CERCLA contribution)
- Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 14 F.3d 321 (7th Cir. 1994) (abuse of discretion when improper factors ignored in allocation)
- PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610 (7th Cir. 1998) (preemption of state law where CERCLA structure is compromised)