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United States v. NCR Corp.

ELR Citation: 42 ELR 20172
Nos. 12-2069, (7th Cir., 08/03/2012)

The Seventh Circuit upheld a lower court's preliminary injunction compelling a PRP to complete the remediation work concerning PCB contamination at the Fox River in Wisconsin that was scheduled for this year. The PRP has performed a significant amount of cleanup at the site. But in 2011 it decided that it had done enough and announced that it was no longer going to comply with the relevant order. The United States and Wisconsin then sought a preliminary injunction, which the PRP opposed. It argued that the cleanup costs were capable of apportionment and that when so apportioned, it was clear that it had already performed more than its share of the work. But the company failed to show that the harm caused by pollution in the Lower Fox River is capable of apportionment. Apportionment is improper where, as here, multiple causes would have been sufficient on their own to bring about the same harm. In addition, the need for cleanup triggered by the presence of a harmful level of PCBs in the river is not linearly correlated to the amount of PCBs that each PRP discharged. Once the PCBs rise above a threshold level, their presence
is harmful and the river must be cleaned.