P.H. Glatfelter Co. v. Windward Prospects Ltd., No. 16-1310 (7th Cir. 2017)Annotate this Case
In the 1990s, the EPA and the Wisconsin Department of Natural Resources investigated the Lower Fox River's contamination by polychlorinated biphenyls and developed a cleanup plan under the Comprehensive Environmental Response, Compensation, and Liability Act. The final plan proposed cleanup in stages, by dredging and capping at an estimated cost of $700 million. Under CERCLA, the parties (PRPs) responsible for the contamination are required to pay for remediation. Paper manufacturers NCR and Appvion have funded the cleanup. Other companies, including Glatfelter, also were named as PRPs and agreed to perform remedial work. In 2007, the EPA ordered the PRPs to begin remedial work in the final units. NCR and Appvion undertook remedial efforts, then sued other PRPs, including Glatfelter. In 2014, the Seventh Circuit remanded that cost recovery action, which remains pending. Glatfelter sought discovery relating to Appvion’s costs from Appvion and Windward (an English entity, conducting Appvion’s defense). Glatfelter issued a subpoena to Windward at its attorney’s address. Windward’s counsel claimed that Windward was not subject to the jurisdiction of the U.S. federal courts. Glatfelter then instituted an ancillary proceeding. The district court denied the motion to compel. The Seventh Circuit dismissed appeals for lack of jurisdiction; a discovery order in an ancillary proceeding is not subject to interlocutory appeal when entered by the same district court that is presiding over the main action.