644 F.3d 368
7th Cir.2011Background
- Governments sued eleven PRPs under CERCLA for response costs and later sought de minimis consent decrees.
- Consent decrees were entered with the City of De Pere and twelve other de minimis defendants; Appleton Papers Inc. and NCR Corporation intervened against them.
- District court approved both settlements over intervenors' opposition; Governments also sought a de minimis settlement with a twelfth defendant, which was granted.
- Fox River in Wisconsin is heavily contaminated with PCBs (Aroclor 1242 predominant); Appleton and NCR responsible for substantial PCB contributions.
- Total estimated cleanup cost projected at about $1.5 billion; de minimis defendants estimated to discharge no more than 100 kg each, totaling about 230,000 kg across all de minimis parties.
- Record evidence included § 104(e) responses, depositions, discovery responses, and public comment; Green Bay Metro Sewerage’s disclosures suggested higher discharges than initial estimates.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rational basis for consent decrees | Whiting and co. contend record lacks rational basis for fair allocation. | Appleton asserts insufficient factual basis; record contains PCB discharge data. | District court's basis for fairness preserved; record supports rational basis. |
| Consideration of non-1242 Aroclors | Decree fairness may ignore non-1242 Aroclors in fault allocation. | Record includes all PCBs; 1242 used only for total, not per-defendant weights. | Decrees accounted for all PCBs; non-1242 factors properly weighed; rational basis preserved. |
| Divisibility of liability | Divisibility issues could affect equitable settlement value; district court should await divisibility ruling. | Settlements appropriately reflect risk; divisibility is separate litigation. | No abuse of discretion; approval before divisibility ruling upheld. |
| Discovery and factual foundation | More discovery needed to support the consent decrees. | No motion for discovery; existing record sufficient. | No error; lack of discovery challenge not preserved or meritorious. |
| Equitable factors under CERCLA § 122(g) | Courts may not rely on equitable factors beyond statutory framework. | Equitable considerations permissible under § 9622(g) and tied to comparative fault. | Equitable factors properly considered; not reversible error. |
Key Cases Cited
- United States v. Cannons Eng’g Corp., 899 F.2d 79 (1st Cir. 1990) (court defers to agency expertise and settlement public policy; review for abuse of discretion)
- In re Tutu Water Wells CERCLA Litigation, 326 F.3d 201 (3d Cir. 2003) (consent decrees must be reasonable, consistent with CERCLA goals, and fair)
- United States v. Montrose Chem. Corp., 50 F.3d 741 (9th Cir. 1995) (unsupported estimates may undermine consent decree rationality; defer to EPA data)
- Kalamazoo River Study Grp. v. Rockwell Int’l Corp., 274 F.3d 1043 (6th Cir. 2001) (upheld district court deference to EPA toxicity conclusions)
- United States v. Armour & Co., 402 U.S. 673 (1971) (discussion of exchange of litigation risk and settlement consequences)