644 F.3d 368
7th Cir.2011Background
- Governments sue 11 PRPs for CERCLA response costs related to Fox River PCB contamination.
- Consent decrees for de minimis defendants (including Green Bay Metro Sewerage District and others) are proposed and moved for settlement.
- Appleton Papers Inc. and NCR Corporation intervene, opposing the settlements.
- District court approves the de minimis settlements after notices, comments, and submissions.
- Governments and de minimis defendants estimate total PCB discharges and allocate comparative fault; some evidence suggests higher discharges than originally estimated.
- Appleton and NCR appeal challenging substantive fairness and related aspects of the decrees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the decrees are substantively fair with a rational basis | Whiting/NCR contend record lacks rational basis. | Appleton/NCR argue evidence insufficient and arbitrary. | Decree fair; record provides rational basis. |
| Whether non-1242 Aroclors were properly accounted for | Governments' approach accounts for all PCBs, not just 1242. | Deemed insufficient due to non-1242 toxicity. | Record supports accounting for all PCBs; non-1242 considered but does not undermine fairness. |
| Whether divisibility issues were properly addressed | Divisibility risk could affect settlements; court should consider. | Divisibility not needed to approve decree here. | District court did not abuse discretion; divisibility issue not decided here. |
| Whether additional discovery was required before approval | More discovery could provide factual basis for decree. | No motion for discovery; issues unpreserved. | Not appealable; discovery concerns outside scope. |
| Whether equitable factors were improperly considered | CERCLA § 122(g) restricts factors. | Equitable factors are permissible; not limited to § 122(g). | Equitable considerations properly within discretion; not error. |
Key Cases Cited
- Cannons Eng'g Corp., 899 F.2d 79 (1st Cir. 1990) (deference to district court on consent decrees; abuse of discretion standard)
- In re Tutu Water Wells CERCLA Litigation, 326 F.3d 201 (3d Cir. 2003) (district court must approve if reasonable and consistent with CERCLA goals)
- United States v. Montrose Chem. Corp., 50 F.3d 741 (9th Cir. 1995) (record lacks information on total cost or fault; cautionary comparison)
- Kalamazoo River Study Grp. v. Rockwell Int'l Corp., 274 F.3d 1043 (6th Cir. 2001) (upholding district court deferential stance on EPA toxicity conclusions)
- Armour & Co., 402 U.S. 673 (1971) (settlement negotiation realities and risk allocation in divisibility contexts)