The Lower Fox River Superfund site continues to pump out decisions on key CERCLA issues. Most recently, the federal court in Wisconsin in US v. NCR Corp. took on the issue of divisibility of harm in granting a preliminary injunction requiring one of the PRPs, NCR, to complete the removal of 660,000 cubic yards of PCB-contaminated sediments from a portion of the Lower Fox River. In entering that injunction, the court rejected NCR’s argument that the harm was divisible, even though NCR presented expert evidence that it was responsible for only 9% of the PCBs in this portion of the river.
Although acknowledging that what NCR proposed was similar to the apportionment that that the Supreme Court had approved in Burlington Northern, the Wisconsin district court went on to distinguish that High Court precedent as not endorsing apportionment but merely upholding a lower court’s conclusion that the harm in that case was divisible. The district court went on to note that NCR’s attempts to base divisibility on the volume of PCBs each PRP released was inappropriate. First, the court found that the remedial costs were not highly correlated with sheer mass of PCBs released but with the location of those PCBs in the river. Second, the court concluded that the risk posed by the PCBs was not posed by the presence of the PCBs but by the risk to the food chain, particularly to fish. According to the court, the risk of PCBs getting into fish transformed the risk into something that could not be apportioned by volume of PCBs released.
As this decision illustrates, there is no bright line test for determining divisibility of harm in CERCLA cases. The fact that a PRP can show present a volumetric allocation does not necessarily mean that the harm is divisible, particularly where the harm is not highly correlated with volume but is correlated with toxicity or other factors.
In most CERCLA cases, where apportionment is denied, PRPs will simply re-purpose their apportionment arguments to the battle over the relative size of contribution shares under Section 113(f). That will not happen in the Lower Fox River case, however, since the court in 2009 in Appleton Papers v. George Whiting Paper ruled that NCR’s culpability in knowing the potential environmental harm caused by PCBs, in contrast to other PCB contributors, warranted that NCR bear a contribution share disproportionate with its volumetric share. It’s worth observing that the court denied apportionment primarily on toxicity grounds but based contribution primarily on culpability, which illustrates that there are fundamentally different standards for determining divisibility of harm and contribution. Apportionment is rooted in an objective and scientific standard whereas contribution is based on a subjective standard of equity.