NCR Corp. v. WTM I Co., No. 13-2631 (7th Cir. 2014)
Annotate this CaseThe Superfund Site encompasses the Lower Fox River and Green Bay, into which paper mills discharged PCBs until the 1970s, and is the subject of remedial efforts under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9606. The U.S. Environmental Protection Agency and the Wisconsin Department of Natural Resources divided the Site into five “operable units” (OUs) and issued records of decision (RODs), calling for dredging in OU1, for monitored natural recovery in OU2; dredging in OU3 and OU4; and monitored natural recovery in OU5. Several potentially responsible parties (PRPs) agreed to perform the work in OU1. NCR and another PRP agreed to perform remedial design work for OU2–OU5. The agencies amended the ROD for OU2–OU5, keeping dredging as the default approach but allowing for capping and sand covering. EPA ordered the PRPs to conduct cleanup required by the amendment. NCR led the remedial efforts in OU2 and OU3 and conducted significant action in OU4. NCR sought contribution from the other PRPs and declined further compliance with EPA’s 2007 order. The district court ordered NCR to complete work scheduled for 2012. The Seventh Circuit affirmed. The district court then held that NCR was not entitled to contribution from paper mills that recycled its scraps and that those mills had meritorious counterclaims for recovery from NCR. The Seventh Circuit vacated the decision to hold NCR responsible for all of the response costs at OU2- 5 in contribution, but affirmed that NCR may proceed only under CERCLA section 113(f); that NCR is not liable as an arranger; that another PRP’s insurance settlement may not be offset against NCR’s contribution share; that NCR can be required to contribute for natural resource damages; and that state-law counterclaims are preempted.
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