A federal court in Wisconsin has ruled that companies which discharged polychlorinated biphenyls (PCB s) into a reservoir that feeds the lower Fox River in Wisconsin can be liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCL A) for cleanup costs in the Lower Fox, even though their individual discharges would not result in response costs. United States v. NCR Corp., No. 10-C-910 (E.D. Wis. 11/23/12).
At the summary judgment stage, the United States asserted that each of the defendant paper manufacturing companies had discharged polychlorinated biphenyls (PCB s) into the waterway. Several upstream defendants fought summary judgment on the ground that “only a minimal amount of PCB s were carried downstream, and these releases were not sufficient to cause the incurring of any response action in the lower portions of the Site.” The court held, “there need be no ‘nexus’ between a given defendant’s release and a specific response cost incurred—it is enough that (a) the defendant released a pollutant and (b) response costs were incurred to clean up ‘a’ release.”
Significantly, the court earlier had concluded that PCB s released into the Upper Fox River could not result in liability at the Lower Fox River site because intervening locks, dams and a lake render untenable the potential for transport into the Lower Fox River. Because transport of at least some the upstream defendants’ PCB s to the Lower Fox River was conceded, however, the court held that those defendants were “attempting to argue for a de minimis defense, which they concede does not exist in CERCL A.” The court granted summary judgment against almost all the defendants. The lone exception was defendant CBC Coating, Inc.; the court found existing factual disputes regarding CBC ’s use and discharge of PCB s that precluded summary judgment.