June 01, 2015 Articles

Federal Court Rules in Favor of Volumetric Approach to Divisibility

The Eastern District of Wisconsin ruled in favor of a volumetric approach to CERCLA divisibility in the Fox River sediment cleanup case.

By Shawn M. LaTourette and Irvin M. Freilich – June 1, 2015

In the latest development in the litigation over the environmental cleanup of the Fox River in northeastern Wisconsin, in United States v. NCR Corp., the U.S. District Court for the Eastern District of Wisconsin has found that NCR Corporation’s liability for the remediation of a section of the river is divisible—not joint and several under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Fox River is a Superfund site contaminated primarily with polychlorinated biphenyls (PCBs) from historic paper manufacturing and recycling facilities along the river. The ruling in favor of divisibility is believed to be the first such judicial decision that has ruled in favor of a divisibility defense since the Supreme Court’s 2009 decision in Burlington Northern & Santa Fe Railway Co. v United States, 556 U.S. 599 (2009). Whether it is an indication of how courts may address divisibility and apportionment of cleanup costs at complex sediment sites and other sites in the future remains to be seen.

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