Appellate Ruling in the Fox River case.

Recently, a Wisconsin corporation partially responsible for polluting Wisconsin’s Fox River was under remediation orders but stopped the clean-up effort. Recently, the U.S. Court of Appeals for the Seventh Circuit told the company to continue remediation efforts.

Under authority granted by the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Environmental Protection Agency (EPA) in 2007 ordered NCR Corporation (NCR) and other “potentially responsible parties” to implement a remediation plan to clean up portions of the river from Lake Winnebago to Green Bay.

Years of paper mill activity along the Lower Fox River, home to a dense population of paper mills, led to heavy PCB (polychlorinated biphenyl) contamination, which can and do cause a number of health problems in humans. NCR developed the “carbonless” paper attributable to PCBs. NCR and other paper manufacturers discharged PCBs for a 16-year period through 1971.

In 2002, the EPA developed a clean-up plan identifying potentially responsible parties like NCR to conduct remediation efforts through dredging and other measures. NCR spent nearly $50 million to remediate sections of the river, and sought clean-up costs from other parties.

In 2008, NCR lost a suit for contribution in equity because the federal district court found that NCR, and not the other companies, continued to produce carbonless paper knowing the risks of PCB contamination. It later ruled that NCR actually owed the other companies money.

NCR notified EPR it would no longer comply with the 2007 order, arguing that it had done its share of remediation. The United States sought an injunction to compel continued clean-up, and the U.S. District Court for the Eastern District of Wisconsin granted the injunction.

In United States v. NCR Corporation, No. 12-2069 (Aug. 3, 2012), a three-judge panel for the Seventh Circuit Court of Appeals upheld the injunction, rejecting NCR’s assertion that the contamination is divisible among the parties and clean-up costs should be apportioned.