United States v. NCR Corporation
688 F.3d 833
| 7th Cir. | 2012Background
- NCR is a CERCLA liable party for PCB discharges into the Lower Fox River and has participated in cleanup under EPA orders; NCR halted work in 2011 after claiming it had done more than its share and sought to limit further remediation.
- EPA/WDNR identified the river in five operable units; the dispute focuses on operable unit 4 (upper and lower halves) and the need to dredge/cap to meet 1.0 ppm PCB threshold.
- District court rejected NCR’s apportionment defense, ruling the harm was not legally divisible and ordered a preliminary injunction requiring NCR to complete 2012 remediation work.
- NCR argued remediation costs are divisible by party based on Burlington Northern, seeking proportional liability; government contends the harm is a single, indivisible hazardous condition.
- NCR sought expedited review of the injunction; court affirmed, holding NCR failed to prove apportionment and that injunction was proper to prevent irreparable harm and serve public interest.
- The court left open whether NCR can recover costs later under §113(f) or §107(a), depending on future proceedings and settlements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the harm divisible and apportionable among PRPs? | NCR can be apportioned based on its percentage of PCB contribution. | Harm is a single, indivisible hazardous condition; costs should be allocated by Restatement §433A. | Harm not divisible; apportionment not warranted. |
| What is the proper framework to determine apportionment in CERCLA cases? | Restatement-based approach supports apportionment by contribution of each defendant. | Restatement guidance supports divisibility only where evidence shows separable harms. | Court adopts Restatement-based framework distinguishing divisible vs. indivisible harms; here indivisible. |
| Are cleanup costs a reliable measure of harm for apportionment? | Costs can reflect contamination and guide apportioned liability. | Costs alone may not equal harm; must consider contamination level and threshold effects. | Cleanup costs may be a relevant factor but not sole measure of harm. |
| Did the district court abuse its discretion on the injunction given equitable considerations? | Delayed cleanup would cause irreparable harm and public health risk. | Equities require careful post-liability allocation; injunction premature absent merits decision. | No abuse; injunction appropriate pending merits; equities favor relief. |
Key Cases Cited
- Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (U.S. 2009) (apportionment framework under Restatement; division of harms when theoretically possible)
- United States v. Hercules, Inc., 247 F.3d 706 (8th Cir. 2001) (Restatement-based divisibility guidance on multiple causes)
- United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio 1983) (early doctrine guiding joint and several liability in CERCLA cases)
- United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988) (illustrates when contamination assessment drives harm measure)
- Matter of Bell Petroleum Servs., Inc., 3 F.3d 889 (5th Cir. 1993) (illustrates varying approaches to apportionment depending on harm type)
- United States v. Atlantic Research Corp., 551 U.S. 128 (U.S. 2007) (two remedies §107(a) vs §113(f); cost recovery vs contribution; interplay clarified)
- W.R. Grace & Co.-Conn. v. Zotos Int’l, Inc., 559 F.3d 85 (2d Cir. 2009) (timing of cost recovery under §107(a) after consent order; circuit split noted)