USA v. NCR Corporation

Aug 3: In the U.S. Court of Appeals, Seventh Circuit, Case No.12-2069. Appeal from the United States District Court for the Eastern District of Wisconsin. As explained by the Appeals Court, The case involves just one

chapter in a long-running set of efforts to clean up the Fox River in Wisconsin, after years during which various companies dumped PCBs (more formally, polychlorinated biphenyls) into its waters. Since at least the late 1990s, U.S. EPA and the Wisconsin Department of Natural Resources (WDNR) have been working to devise and implement an effective remedial plan for the River.

 

    One of companies that was designated as a "potentially responsible party (PRP)," and thus responsible for undertaking remedial work, was NCR Corporation. Acting pursuant to administrative orders, NCR has performed a significant amount of cleanup. It decided, however, in 2011 that it had done enough and announced that it was no longer going to comply with the relevant order. That is what prompted the present action by the United States and Wisconsin seeking a preliminary injunction

compelling NCR to complete the remediation work scheduled for this year. The governing statute is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). NCR opposed the injunction, arguing that the cleanup costs were capable of apportionment, and that when so apportioned, it was clear that NCR had already performed more than its share of the work.

 

    The district court evaluated the facts otherwise and issued the preliminary injunction. NCR is presently complying with the injunction. We expedited this appeal, however, understanding that NCR is seeking to challenge its interim obligations, which have been imposed without a full trial on the merits. The Appeals Court rules, ". . .we agree with the district court that NCR has not met its burden of showing that the harm caused by pollution in the Lower Fox River is capable of apportionment. We further find no abuse of discretion in the court's decision to issue the preliminary injunction, and so we affirm its order."

 

    Citing some uncertainties from the Supreme Court and conflicting Appeals Court circuit opinions regarding liabilities and cost recovery, the Appeals Court said, "All of this is too uncertain to drive the result in the present case. If and when the time comes, NCR will be free to explore whatever possibilities may still be available to it for either contribution or cost recovery. What is available will of course depend in part on any appeal that it might take from the district court's order on this subject -- a topic that is not before us at this time. For now, we conclude that it is an open question whether, and if at all to what extent, NCR might

be able in future legal proceedings to recoup any costs it should not have paid. Thus, the district court's weighing of the equities did not amount to an abuse of discretion. Its preliminary injunction requiring NCR to complete the specified 2012 remediation work is therefore affirmed."

 

    Access the complete opinion (click here). [#Remed, #CA7]