December 23, 2009

Judge Dismisses Contribution Claims re: Fox River PCB Contamination

Posted on December 23, 2009 by Linda Bochert

“Thus, the Plaintiffs’ present claim that they never knew about the dangers of PCBs until after 1971 rings roughly as hollow as Captain Renault’s feigned outrage upon being ‘shocked, shocked’ to discover gambling at Rick’s Casablanca café.” 

Appleton Papers Inc. and NCR Corp. v. George A. Whiting Paper Co., et al. (slip op. at 25, US District Court, Eastern District of WI, Case No. 08-C-16)

With those words, on December 16, 2009 Judge William C. Griesbach, United States District Judge for the Eastern District of Wisconsin dismissed CERCLA §107 contribution claims brought by Plaintiffs Appleton Papers, Inc. (API) and NCR Corp. against all Defendants.   NCR and API sought contribution from 23 other paper mills, cities, utilities, and sewerage districts, and industrial dischargers to allocate the multi-million dollar costs of remediating the polychlorinated byphenyl (PCB) contamination in the Lower Fox River in northeastern Wisconsin. Defendants’ Summary Judgment motions asserted that Plaintiffs were not entitled to contribution because the Defendants are “essentially innocent parties who had no knowledge that recycling NCR paper or processing wastewater could lead to environmental damage.” Slip op. at 4. The Judge agreed.

Beginning in 1954, NCR developed a carbonless copy paper that relied on an emulsion based on Aroclor 1242, a PCB solvent manufactured by Monsanto Corporation. NCR created the emulsion and developed and sold the carbonless paper product. API’s predecessor manufactured the paper and coated it with the NCR emulsion. API’s wastewater was discharged to the Fox River, taking the PCBs with it. API also sold its waste paper to other mills to be recycled into paper products, resulting in PCB-containing wastewater discharges from those facilities. The result: significant PCB-contamination in the sediments of the Lower Fox River from the mouth at Green Bay to Lake Winnebago and what has been called the largest contaminated sediment cleanup in the world..

The decision turns on what the Plaintiffs knew about the potential harm of the PCBs in their carbonless copy paper and when they knew it. It includes an instructive recital of internal communications within and among NCR and API, Monsanto, and Wiggins Teape, NCR’s exclusive European-licensee, leading to the Court’s conclusion that “I am satisfied that by the late 1960’s Plaintiffs had access to the vanguard of data suggesting an appreciable risk of serious and long-lasting environmental damage resulting from the production and recycling of NCR paper.” (emphasis in original) Slip op. at 26.

Readers will find the case of interest on both the legal analysis — application of the “Gore factors” in determining equitable allocation, consideration of successor liability, and the Court’s evaluation and weighing of the overall equities – and the factual history. On this latter point, the case may well serve as a primer on how a business’ historical records and risk management decisions can come back to haunt it with respect to future determinations of knowledge and liability: 

“In the face of increasing red flags, Plaintiffs’ approach in the late 1960s was to worry about publicity and wait for the ‘second shoe’ to drop. At its essence, Plaintiffs’ approach was a risk management strategy to accept the risk of potential environmental harm in exchange for the financial benefits of continued (and increasing) sales of carbonless paper containing Aroclor 1242.” Slip op. at 26.

Appeal decisions are still pending. For those who want to know more about the Fox River, PCB-contamination, and the clean-up, both the Wisconsin Department of Natural Resources and the United States Environmental Protection Agency maintain extensive websites:

Click here for WDNR’s Fox River website

Click here for EPA Region 5’s website

Tags: Superfund

Hazardous Materials | Major Topics | Superfund

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