Posted on April 22, 2011 by William Session
In 2009, the United States District Court for the Eastern District of Wisconsin rendered a widely reported and discussed decision in Appleton Papers Inc. v. George A. Whiting Paper Co., No. 2:08-cv-16-WCG (E.D. Wis. Dec. 16, 2009) (Appleton I) that many remember as being unique. This is because rather than considering the usual so-called “equitable factors” to determine proportionate financial responsibility in a CERCLA contribution action such as waste-in volume or relative contaminant toxicity, the District Court focused entirely on a single marker of relative culpability i.e., Appleton Paper’s knowledge that their actions would cause environmental harm.
In February of 2011, the District Court issued an equally intriguing opinion in Appleton Papers Inc., v. Whiting Paper Co., No. 08-C-16, 41 ELR 2011 (E.D. Wis. Feb. 28, 2011) (Appleton II). Relying in large measure on the District Court’s 2009 decision, multiple defendants argued that the response costs already contributed to cleanup effort should be borne by NCR Corp. and Appleton Papers Inc. (collectively “the Appleton Plaintiffs”). All of the Defendant’s arguments highlighted the same equitable factor that barred the Appleton Plaintiffs from obtaining contribution it, e.g, knowledge that a generated waste might cause environmental harm. The District Court agreed, and determined that the Appleton Plaintiffs were liable to the Defendants for response cost of remediating four of the five operable units along the Lower Fox River. However, the Appleton Plaintiffs were determined not to liable for costs associated with Operable Unit No. One (“OU1”) because the OU1 defendants were unable to prove that the Appleton Plaintiffs contributed to the contamination of OU1 (OU1 is located upstream of the Appleton Plaintiffs’ facility) or that the Appleton Plaintiffs were arranges under CERCLA §107).
These cases warrant practitioners’ review as they clearly express the notion that contribution liability should rest upon satisfaction of the ultimate objective of the CERCLA liability scheme i.e., that the polluter pays the costs of resolving the pollution it causes. This objective should never be far from mind, as the fact based focus of inquiry utilized by the District Court in these cases may well be the undoing of practitioner’s efforts to rely upon supposed technical and legal attributes of relative responsibility. Instead, the focus should be directed to the essential inquiry at the root of the CERCLA legislative cost recovery scheme e.g., the polluter who causes pollution to occur should pay for its cleanup.