What To Do When You Are Issued A CERCLA Injunction To Perform A $1.5 Billion Cleanup — Lower Fox River Superfund Update

In a 78 page decision in the Lower Fox River Superfund case issued last month, the federal court issued an injunction against  NCR Corp. and three other PRPs requiring them to perform a $1.5 billion remedy.   No company ever wants to receive such an injunction and NCR sought to soften the impact of that injunction by proposing that it would share the costs of performing the remedy on an interim per capita basis with the three other PRPs.  When those three other PRPs declined,  NCR requested that the court order the PRPs to each pay a 25% per capita share along with NCR.

The court declined NCR’s request on the ground that only the United States, on whose behalf the injunction had been issued, had standing to request enforcement of the injunction.   The court indicated that it would only reach the issue of allocating the injunction costs among the defendants  if the United States sought to enforce the injunction.  While the court’s ‘s decision might suggest that it was inviting NCR not to perform in order to pressure the United States into seeking to enforce the injunction, the court went on to note that the position of the three other PRPs was not surprising given that in a related CERCLA contribution proceeding the court had previously ruled that NCR should pay the full future costs of the remedy at the site.

Given that $1.5 billion is at stake, it’s hard to believe that there won’t be additional challenges to the current litigation results.

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