United States v. NCR Corporation , 688 F.3d 833 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2069
U NITED S TATES OF A MERICA and
THE S TATE OF W ISCONSIN ,
Plaintiffs-Appellees,
v.
NCR C ORPORATION,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-C-910—William C. Griesbach, Judge.
A RGUED JUNE 4, 2012—D ECIDED A UGUST 3, 2012
Before K ANNE, W OOD , and T INDER, Circuit Judges.
W OOD , Circuit Judge. This case involves just one
chapter in a long-running set of efforts to clean up the
Fox River in Wisconsin, after years during which various
companies dumped PCBs (more formally, polychlorinated
biphenyls) into its waters. Since at least the late 1990s,
the United States Environmental Protection Agency
(EPA) and the Wisconsin Department of Natural
2 No. 12-2069
Resources (WDNR) have been working to devise and
implement an effective remedial plan for the River. One
of companies that was designated as a “potentially re-
sponsible party (PRP),” and thus responsible for under-
taking remedial work, was NCR Corporation. Acting
pursuant to administrative orders, NCR has performed
a significant amount of cleanup. It decided, however, in
2011 that it had done enough and announced that it was
no longer going to comply with the relevant order. That
is what prompted the present action by the United
States and Wisconsin seeking a preliminary injunction
compelling NCR to complete the remediation work
scheduled for this year. The governing statute is the
Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA), 42 U.S.C. § 9606(a). NCR
opposed the injunction, arguing that the cleanup costs
were capable of apportionment, and that when so ap-
portioned, it was clear that NCR had already performed
more than its share of the work. The district court evalu-
ated the facts otherwise and issued the preliminary
injunction.
NCR is presently complying with the injunction.
We expedited this appeal, however, understanding
that NCR is seeking to challenge its interim obliga-
tions, which have been imposed without a full trial on
the merits. For the reasons that follow, we agree with
the district court that NCR has not met its burden of
showing that the harm caused by pollution in the Lower
Fox River is capable of apportionment. We further find
no abuse of discretion in the court’s decision to issue
the preliminary injunction, and so we affirm its order.
No. 12-2069 3
I
Wisconsin is the country’s leading producer of paper
products, thanks to its abundance of forests and fresh
water. As early as the 1890s, paper mills began operating
on Wisconsin’s many rivers. The densest concentration
of those mills in Wisconsin—indeed, in the world—is
found on the Lower Fox River, which begins at Lake
Winnebago and runs for about 40 miles northeast until
it discharges into Green Bay.
Paper manufacturing, unfortunately, has traditionally
come at a high environmental price, in the form of serious
water pollution. Wisconsin’s vast industry has left the
Lower Fox River heavily contaminated with PCBs. PCBs
are toxic chemicals that remain highly stable in the en-
vironment for a long time and are known to cause a host
of health problems, including birth defects and cancer,
in both animals and humans. Many of the PCBs present
in the Lower Fox River are attributable to the production
of “carbonless” copy paper, which was developed by
NCR in 1954. Between 1954 and 1971, NCR and other
paper manufacturers produced and recycled this PCB-
tainted paper, ultimately discharging an estimated 230,000
kilograms of PCBs into the Lower Fox River.
Starting in 1998, EPA and WDNR began investigating
the contamination in order to develop a cleanup plan,
in accordance with the EPA’s power under CERCLA. See
42 U.S.C. § 9605; 40 C.F.R. § 300.430(f). After ample op-
portunity for public comment, EPA issued a final
cleanup plan for the River in 2002. The plan proposed
that cleanup of the River would proceed in several
4 No. 12-2069
phases, beginning with the portions of the River located
upstream and ending with the portions that flow into
Green Bay. The plan thus divided the River into five
sections, which in bureaucratese were called operable
units. Anywhere that the average concentration of PCB
in the River exceeds 1.0 ppm (i.e., parts per million)
requires remediation, because EPA has determined that
concentrations of PCB above this amount are hazardous
to human health. Depending on the particular concen-
tration of PCBs and river dynamics, the plan called
for a combination of dredging (gathering and dis-
posing of sediments) and capping (covering con-
taminated sediments) at various sites in each of the
River’s operable units.
Remediation is largely complete in the first three opera-
ble units. At issue in this appeal is the last section of
the River, the fourth operable unit, which runs from the
De Pere Dam to the mouth of Green Bay. (The fifth opera-
ble unit consists of portions of Green Bay contaminated
with PCBs.) The parties further divide this fourth
section into an upper and lower half, as shown in the
Appendix to this opinion.
NCR admits that it is a liable party under CERCLA,
because of PCB discharges from two plants located along-
side the River’s second operable unit. In November 2007,
EPA issued a Unilateral Administrative Order pursuant
to CERCLA § 106(a), 42 U.S.C. § 9606(a), directing NCR
and other potentially responsible parties (a term of art
under CERCLA, see 42 U.S.C. § 9607(a)) to implement
the remedial plan in operable units two through five.
No. 12-2069 5
After EPA issued this order, NCR participated in—and
even led—remediation efforts in operable units two
and three, at a cost of approximately $50 million. It also
performed some of the work required in the fourth unit:
As of the end of 2011, NCR had completed about half of
the dredging required in the upper half of unit four
and twenty percent of that required in its lower half.
Throughout this time, however, NCR has main-
tained that it should not be responsible for 100% of the
remediation work and has tried to recoup some of the
cleanup costs from the other potentially responsible
parties. In January 2008, NCR filed a suit for contribu-
tion in equity from the other paper plants. At the end
of 2009, the district court denied NCR’s claim for con-
tribution. It did so because it found as a fact that NCR,
and not the companies operating the other plants, had
been aware of the significant risks of PCBs at an early
date but had decided “to accept the risk of potential
environmental harm in exchange for the financial benefits
of continued (and increasing) sales of carbonless paper.”
Appleton Papers Inc. v. George A. Whiting Paper Co.,
No. 08-C-16, 2009 WL 5064049, at *14 (E.D. Wis. Dec. 16,
2009). In fact, the court’s finding of NCR’s culpability
also led it to hold that NCR owed the other plants contri-
bution for their expenses in cleaning the river. Appleton
Papers Inc. v. George A. Whiting Paper Co., 776 F. Supp. 2d
857, 867-70 (E.D. Wis. 2011). These decisions have not
yet been appealed because the district court held a trial
on the issue of arranger liability and a decision is still
pending.
6 No. 12-2069
A few weeks after the district court’s second adverse
ruling in the contribution case, NCR notified EPA it
would no longer comply with EPA’s order because it had
already done more than its share of the work. NCR cut
its work in half during 2011, and then it refused to
commit to perform any remediation work in 2012. In
response, the United States filed a motion for a prelim-
inary injunction to require NCR to complete the sched-
uled work. (In fact, the United States had also filed a
motion for a preliminary injunction against NCR and
another company, Appleton Paper Inc. (API), in 2011, but
the district court denied that motion on the ground that
the government was not likely to show that API was
liable. API was then dismissed as a party from the
current motion for a preliminary injunction. The scope of
API’s liability is thus not at issue in this appeal.)
Although it would also be theoretically possible for the
United States to complete the work itself, using money
from the Superfund account, nothing compels it to use
that option rather than seeking to compel responsible
parties to do the work. Should NCR be found not to
be responsible for the contested work after the trial on
the merits, the district court will need to consider
how to make it whole. We reserve that question for
another day.
NCR’s principal ground for contesting the propriety
of the injunction was that its liability was less than the
costs it had already incurred. Citing Burlington Northern
& Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009), it
argued that the harm to the Fox River is divisible and
thus that the remediation costs should be apportioned
No. 12-2069 7
among all of the potentially responsible parties. The
district court rejected this defense, holding that the
harm to the site was not reasonably capable of appor-
tionment, and in an order dated April 27, 2012, it
issued the injunction. NCR immediately filed a notice of
appeal, requesting expedited treatment and a stay of the
injunction during the pendency of the appeal. This court
granted expedited treatment but denied the motion for
a stay. Remediation efforts are thus ongoing, in com-
pliance with the district court’s order.
II
It is important to recall, for purposes of this inter-
locutory appeal under 28 U.S.C. § 1292(a)(1), that our
role is only to review the district court’s decision for
abuse of discretion. To the extent that the district court
based its decision on a question of law, our review is
de novo; but we give deferential review to the district
court’s findings of fact. Michigan v. U.S. Army Corps of
Engrs., 667 F.3d 765, 769 (7th Cir. 2011). Plaintiffs seeking
a preliminary injunction must establish that they are
likely to succeed on the merits, they are likely to suffer
irreparable harm in the absence of preliminary relief,
the balance of equities tips in their favor, and issuing
an injunction is in the public interest. Id. (citing Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
A
We begin with the plaintiffs’ likelihood of success, which
turns on NCR’s assertion that the harm to the Fox River
8 No. 12-2069
caused by the PCBs dumped into it over the years by a
number of companies is divisible. If that is correct, then
the follow-on question is how to apportion the costs
of remediation among all responsible parties.
1
The “ ‘universal starting point for divisibility of harm
analysis in CERCLA cases’ is § 433A of the Restatement
(Second) of Torts.” Burlington Northern, 556 U.S. at 614(quoting United States v. Hercules, Inc., 247 F.3d 706, 717
(8th Cir. 2001)). Under CERCLA, although Congress
“imposed a ‘strict liability standard,’ it did not mandate
‘joint and several’ liability in every case.” Id. (quoting
United States v. Chem-Dyne Corp., 572 F. Supp. 802, 805 &
807 (S.D. Ohio 1983)). Thus, in general we must look to
the common law to determine whether the harm in this
case is divisible. And in particular, we are instructed
by Burlington Northern to use the Restatement standard,
which the Court adopted in that case, quoting the fol-
lowing language:
[W]hen two or more persons acting independently
caus[e] a distinct or single harm for which there is
a reasonable basis for division according to the contri-
bution of each, each is subject to liability only for
the portion of the total harm that he has himself
caused. Restatement (Second) of Torts, §§ 443A, 881
(1976); Prosser, Law of Torts, pp. 313-14 (4th ed.
1971) . . . . But where two or more persons cause a
single and indivisible harm, each is subject to liability
No. 12-2069 9
for the entire harm. Restatement (Second) of Torts,
§ 875; Prosser, at 315-17.
Id. (ellipses in original).
This analysis proceeds in two steps. First, we must
determine whether the harm at issue is theoretically
“capable of apportionment.” Id. The Restatement
instructs that this is “a question of law, and is for the
decision of the court in all cases.” Restatement (Second) of
Torts § 434, cmt. d. By that, we understand that the ulti-
mate question is one that is allocated to the court
for decision, but that as is often the case, there will be
underlying findings of fact on which the court’s deci-
sion will rest. For example, the district court will need
to decide what type of pollution is at issue, who con-
tributed to that pollution, how the pollutant presents
itself in the environment after discharge, and similar
questions. In reviewing the district court’s findings of
the facts that underlie the ultimate decision, our review,
as noted previously, proceeds under the clear error stan-
dard. Second, if the harm is capable of apportionment,
the fact-finder must determine how actually to appor-
tion the damages, which is “a question of fact.” Id. At all
times, the burden remains on the party seeking apportion-
ment—here NCR—to “prove[] that a reasonable basis for
apportionment exists.” Burlington Northern, 556 U.S. at 614.1
1
The American Tort Reform Association as amicus curiae argues
that we should follow the modern trend away from joint
and several liability and reject joint and several liability across
(continued...)
10 No. 12-2069
2
We agree with the district court that NCR has not met
its burden of showing that the harm in this case is
capable of apportionment, although we reach this con-
clusion by taking a slightly different approach. We are
guided by the commentary to Restatement § 433A(2) on
the topic of the possibility (or impossibility) of appor-
tionment. Apportionment is improper “where either
cause would have been sufficient in itself to bring about
the result, as in the case of merging fires which burn
a building.” Id. at cmt. i; see also Steve C. Gold,
Dis-Jointed? Several Approaches to Divisibility After
Burlington Northern, 11 V T. J. E NVT’L L. 307, 351 (2009)
(examining cases and concluding that “at common law
and under the Second Restatement, parties responsible
for multiple sufficient causes of harm faced joint and
several liability for the entire resulting harm”). We are
convinced that the facts in this case are an example of
1
(...continued)
the board. That, however, is a policy argument best directed
to Congress. The Supreme Court has told us in Burlington
Northern to adopt the apportionment principles of the Restate-
ment (Second) of Torts, and that is the end of it for a lower
court. Even if we were to look more closely at modern state
trends, it is notable that some of the states that have moved
away from joint and several liability for general torts
specifically retain it in the context of pollution. See Restate-
ment (Third) of Torts §17, at 154 (1999) (citing Alaska, Idaho,
and Nevada rules retaining joint and several liability for
claims involving hazardous or toxic substances).
No. 12-2069 11
just this kind of multiple sufficient causes of an environ-
mental harm.
NCR’s expert, Dr. Connolly, testified that NCR’s dis-
charge of PCBs into the Lower Fox River in the second
operable unit (that is, upstream) contributed about 9% of
the PCBs in the fourth operable unit’s upper half (further
from Green Bay), and 6% of the PCBs in the lower half
(closer to Green Bay). We will assume for the sake of this
analysis that those figures are correct. But it does not
necessarily follow that NCR is responsible for only 9% or
6% of the cleanup costs. Even if all that were present in
the river were NCR’s contributions, the Lower Fox River
would still need to be dredged and capped, because
EPA has set a maximum safety threshold of 1.0 ppm of
PCB. Anything above that amount is dangerous to
human life and requires remediation. The government
offered unrefuted expert testimony from Richard Fox
that “[e]ven in the absence of inputs of PCBs from
[other] Operable Unit 4 sources, remediation would
likely still be required in certain areas of Operable Unit 4
at the 1.0 ppm” level. App. 460 (Fox Declaration at 4). The
district court credited Fox’s testimony, noting that Fox’s
analysis showed that “[a] cubic yard of sediment costs
the same to dredge or cap whether it contains 10 ppm
or 100 ppm.” Although the district court was focused on
the cost of dredging (and NCR argues passionately that
cost of remediation is a bad surrogate for harm in-
flicted), the court’s analysis necessarily recognizes that
a cubic yard of sediment would need to be dredged
whether it contained 10 ppm or 100 ppm, because that
cubic yard of sediment contains PCBs above the maxi-
mum threshold.
12 No. 12-2069
NCR did not put forth any evidence to refute the gov-
ernment’s contention that NCR’s contributions of PCB
would, alone, require approximately the same remedial
measures. In fact, the models used by NCR’s own
expert failed to take into account the thresh-
old-triggering aspect of PCB remediation. When asked
by the government how NCR’s model would assign
liability between polluter A, who deposited 3 ppm, and
polluter B, who deposited 30 ppm, NCR’s expert testified
that the model would assign 10% liability to polluter A
and 90% liability to polluter B. App. 46-47 (Simon testi-
mony). But under the Restatement, both polluters are
liable because either discharge of PCB was sufficient to
create a condition that is hazardous to human health
under EPA guidelines.
There was some evidence presented to the court that
the dredging costs would be lower if less PCBs were
present, because disposal procedures for sediment that
is extremely contaminated are more costly. But this
point was not developed adequately; indeed, to the
extent that it was, it tends to favor the government. As
the district court explained, “[t]he overwhelming point
is that the expense of cleaning up the Lower Fox River
is only weakly correlated with the mass of PCBs dis-
charged by the parties.” Put another way, 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 paper mill discharged. Instead,
once the PCBs rise above a threshold level, their presence
is harmful and the River must be cleaned. The details
of that cleanup may vary depending on exactly how
No. 12-2069 13
much PCB is present, but not in any way that sug-
gests that the underlying harm caused—the creation of
a hazardous, polluted condition—is divisible.
3
The district court reached the same conclusion taking
a slightly different approach. It began by trying to deter-
mine how to define the “harm” caused by PCB pollution
in this case. It considered three different definitions of
“harm”: harm as measured by remediation costs
imposed by the pollution, harm as measured by danger
to the public, and harm as measured by the amount of
pollution in the sediment. The court concluded that
the harm was not divisible because the amount of PCBs
deposited by NCR was not well correlated with the
amount of harm under any of these approaches.
On appeal, NCR largely attacks the district court’s
reliance on remediation cost as a measure of harm,
even though that was not the district court’s only hold-
ing. NCR argues that remediation cost is an inappropriate
way to measure the harm caused by PCBs, because other
courts and the Restatement examples focus on the level of
pollution and contamination as a measure of the harm.
We agree with NCR that cleanup costs, on their own, are
not exactly equal to harm. Cleanup costs reflect the
damage caused by the pollution. But we are not persu-
aded that taking into account remediation costs to ap-
proximate harm caused by pollution is so far off the
mark. If EPA has determined that the harm from
14 No. 12-2069
leaving a certain pollutant in the environment exceeds
the costs required to clean up that pollutant, then
under standard cost-benefit analysis we might think of
cleanup costs as setting a lower bound for an approxi-
mation of the amount of harm. If other assessments of
injury show that the costs of cleanup significantly
exceed the expected benefits, that would require
further investigation. Here, however, the district court
did look beyond costs, indicating that it did not rely on
an untested assumption that the government would
never miss the mark with its cost-benefit assessments.
NCR argues that the Ninth Circuit has flatly rejected
using cost as a measure of harm, but we read its deci-
sion differently. Burlington Northern, 520 F.3d 918, 939
(9th Cir. 2008). (This is the case that the Supreme Court
later took; it reversed the Ninth Circuit’s conclusion
that the district court’s allocation calculation was not
accurate enough, but it did not comment on the Ninth
Circuit’s assessments of how “harm” should be mea-
sured.) In fact, that court recognized that costs can
be used as evidence of harm in certain cases, holding that
the harm in CERCLA cases should be defined as “the
contamination traceable to each defendant.” Burlington
Northern, 520 F.3d at 939. It then explained that the
cost of cleanup of different toxic substances or in
different areas of the facility will often be a useful
measure of the proportion of the pertinent contamina-
tion allocable to each defendant. . . . [T]he ‘harm’
allocation analysis may in some instances use-
fully focus initially on the proportion of costs associ-
No. 12-2069 15
ated with remedying various aspects of the contam-
ination.
Id. at 939 n.25. We agree with the Ninth Circuit that
“contamination traceable to each defendant” is a proper
measure of the harm, and our analysis above is con-
sistent with that definition. But how to define “contamina-
tion” will not always be such a simple question, because
in many cases the level of contamination will depend
on a variety of facts about the type of contaminant and
site at issue. Here, for instance, contamination occurs
whenever PCBs pass a threshold level (thereby trig-
gering remedial requirements).
In other cases in which the facts are simple, and “it is
reasonable to assume that the respective harm done by
each of the defendants is proportionate to the volume
of [contaminant] each discharged into the environment,”
Matter of Bell Petroleum Servs., Inc., 3 F.3d 889, 903 (5th
Cir. 1993), then a court might be able to measure harm
based simply on the volume of contaminant. But for
more complicated situations like this one, in which a
chemical is harmful when it surpasses a certain amount,
or instances in which a chemical may not be very
harmful but becomes so when mixed with other
chemicals, it will not suffice to look solely at the amount
of contamination present in order to estimate the harm.
See also United States v. Monsanto Co., 858 F.2d 160, 173
n. 27 (4th Cir. 1988) (“Volumetric contributions provide
a reasonable basis for apportioning liability only if it
can be reasonably assumed, or it has been demonstrated,
that independent factors had no substantial effect on the
harm to the environment.”). Like the Ninth Circuit,
16 No. 12-2069
we believe that cleanup costs may sometimes be a
relevant factor for courts to use to determine the level
of contamination, and thus the level of harm, caused
by each polluter.
The Restatement’s various examples of pollution-
related torts do not undermine this analysis. NCR points
to a Restatement example that says harms are
divisible when two people put oil in a stream and the
oil prevents a downstream factory from using the water:
5. Oil is negligently discharged from two factories,
owned by A and B, onto the surface of a stream. As
a result C, a lower riparian owner, is deprived of
the use of the water for his own industrial purposes.
There is evidence that 70 per cent of the oil has
come from A’s factory, and 30 per cent from B’s. On
the basis of this evidence, A may be held liable for
70 per cent of C’s damages, and B liable for 30 per cent.
Contrast Illustrations 14 and 15.
Restatement (Second) of Torts § 433A, illustration 5. But
the Restatement also gives examples of two companies
that put oil in a stream, after which a fire breaks out
or cows drink the water and die, as examples of
indivisible harms:
14. A Company and B Company each negligently
discharge oil into a stream. The oil floats on the
surface and is ignited by a spark from an unknown
source. The fire spreads to C’s barn, and burns it down.
C may recover a judgment for the full amount of his
damages against A Company, or B Company, or
both of them.
No. 12-2069 17
15. The same facts as in Illustration 14, except that C’s
cattle drink the water of the stream, are poisoned
by the oil and die. The same result.
Id., illustrations 14 and 15.
These examples show that there is not necessarily one
universal way that we should approach apportionment
in pollution cases. Instead, apportionment will vary
depending on how the harm that flows from pollution
is characterized. In Illustration 5, there is a single harm
to the downstream user—the need to find an alterna-
tive source of water—while in Illustrations 14 and 15
the ultimate harms are more difficult to trace to the
original polluters. In the latter Illustrations, just as in
the present case, it is impossible to draw a logical con-
nection between the amount of oil each company dis-
charged into the stream and the ultimate injury. Or at
least the district court could reasonably find, based on
the expert evidence that was in the record. Our own
conclusion is the same as the district court’s: were we
choosing among Restatement examples, we find this
case to be closer to Illustrations 14 and 15 than to 5. The
problem here is not that downstream factories were
prevented from using the Fox River for some period,
but that wholly apart from water usage, a toxic
chemical in the water causes significant and widespread
health problems in both animals and in humans.
4
NCR’s final point is that the district court’s approach
is inconsistent with the Supreme Court’s decision in
18 No. 12-2069
Burlington Northern. In Burlington Northern, however, the
parties agreed that apportionment was theoretically
possible, and thus the Court never addressed the
question at issue in this case. See 556 U.S. at 615. The
Court instead addressed only the second question, re-
garding the evidence necessary to make an apportion-
ment calculation. We agree with NCR that this aspect of
Burlington Northern demonstrates that apportionment
calculations need not be precise. To the contrary, the
Court upheld a district court’s rather rough, sua sponte
calculation of apportionment. 556 U.S. at 617-18.
But we do not agree with NCR that lower courts
must always take such an approach. Such a rule would
in essence replace an evidence-based apportionment
calculation with a rougher appeal to equity. Burlington
Northern was very careful to distinguish apportion-
ment from contribution: “[A]pportionment . . . looks to
whether defendants may avoid joint and several liability
by establishing a fixed amount of damage for which they
are liable, while contribution actions allow jointly and
severally liable PRPs to recover from each other on the
basis of equitable considerations.” Id. at 615 n.9. The
Court emphasized that “[e]quitable considerations play
no role in the apportionment analysis; rather, apportion-
ment is proper only when the evidence supports the
divisibility of the damages jointly caused by the PRPs.” Id.Burlington Northern said nothing at all about fact patterns
like the one presented by this case, in which multiple
entities independently contribute amounts of pollutants
sufficient to require remediation. In Burlington Northern,
No. 12-2069 19
one party had “contributed to no more than 10% of the
total site contamination, some of which did not require
remediation.” Id. at 617. The Court noted that “[w]ith
these background facts in mind” the district court’s
apportionment calculation was appropriate. Id. Here,
in contrast, even if NCR contributed no more than 10%
of the PCBs, that 10% would require remediation. It was
NCR’s burden to show otherwise, and it failed to do so.
B
As for the remaining three preliminary injunction
factors, we agree with the district court’s analysis. The
district court held that a delay in the Fox River cleanup
would inflict irreparable harm in the form of permitting
pollution to continue unabated, which would cause
the further spread of PCBs into fish, and thence into
humans who eat fish. Studies show that people continue
to eat some fish from the River despite government
warnings about the presence of PCBs. Successful
remediation in previous sections of the River has
resulted in a reduction in the concentration of PCBs in
fish by 73%. In addition, permitting PCBs to remain in
the water allows them to continue to flow into Green
Bay and ultimately Lake Michigan. Once in the bay and
the Lake, the problem becomes irreparable, as there are
not any effective methods of cleaning PCBs from such
deep bodies of water. Preventing these injuries is in the
public interest, and thus the district court concluded
that issuing an injunction was in the public interest.
Finally, the district court concluded that “the equities
favor issuance of an injunction as soon as possible
20 No. 12-2069
because the harm to the public outweighs any potential
harm to NCR.” A district court’s “balancing of harms is
a highly discretionary matter and therefore one to which
this court must give substantial deference.” Washington
v. Indiana High Sch. Ath. Ass’n, Inc., 181 F.3d 840, 845
(7th Cir. 1999). We agree with the district court that the
balance of the equities favors issuing an injunction.
NCR’s primary appeal to equity rests on its assertion
that it should not have to bear the costs of the cleanup
before it is determined to be liable on the merits. It argues
that its ability to recoup costs from other potentially
responsible parties will be slim given the fact that others
have settled with the government, and given the district
court’s existing (but as of yet, unreviewed) rulings
that NCR is not entitled to contribution. But we believe
none of these contentions counsels against issuing
an injunction at this stage; there will be time enough
later to sort out the various parties’ liabilities. At this
stage, anything we might say about how that liability
might be apportioned (or equitably redistributed) would
be entirely speculative. For example, while section 113(f)
of CERCLA, 42 U.S.C. § 9613(f), provides for a contribu-
tion action in order for potentially responsible parties
to sort out among one another after remediation costs
are incurred who should pay, see Kalamazoo River Study
Group v. Menasha Corp., 228 F.3d 648, 657 (6th Cir. 2000),
the same statute provides that “[a] person who has re-
solved its liability to the United States or a State in an
administrative or judicially approved settlement shall
not be liable for claims for contribution regarding
matters addressed in the settlement.” § 113(f)(2); 42 U.S.C.
No. 12-2069 21
§ 9613(f)(2). NCR is thus correct that it cannot seek contri-
bution from parties that have settled. But settlements
do reduce the potential liability of nonsettling parties
by the amount of the settlement. Id.
NCR has not taken into account another part of the
statute, section 107(a), 42 U.S.C. § 9607(a), which provides
a claim for cost recovery under certain circumstances.
In United States v. Atlantic Research Corp., 551 U.S. 128(2007), the Supreme Court held that “§§ 107(a) and 113(f)
provide two ‘clearly distinct’ remedies.” Id. at 138. Sec-
tion 113 actions for contribution are available only to
parties that have been the subject of government enforce-
ment action under CERCLA. Id. & n.5; see also Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 160-61
(2004). Section 107 cost recovery, in contrast, may be
sought by a potentially responsible party that has not
yet been the subject of any government enforcement
action or admitted liability. Atlantic Research, 551 U.S.
at 139.
Atlantic Research commented on the overlap between
the two sections and held that a party is limited to § 113
if it wishes to obtain money it paid “to satisfy a settle-
ment agreement or a court judgment,” because “by reim-
bursing response costs paid by other parties, the PRP
has not incurred its own costs of response and therefore
cannot recover under § 107(a).” Id. The Court went on
to note, however, that there may not be a stark division
between § 113 and § 107 in all cases, such as when a
responsible party sues to recover expenses sustained
“pursuant to a consent decree following a suit under § 106
22 No. 12-2069
or § 107(a).” Id. at 139 n.6. As noted earlier, NCR has
been incurring cleanup costs pursuant to such a
consent decree. “In such a case, the PRP does not incur
costs voluntarily but does not reimburse the costs of
another party. We do not decide whether these com-
pelled costs of response are recoverable under § 113(f),
§ 107(a), or both. For our purposes, it suffices to demon-
strate that costs incurred voluntarily are recoverable
only by way of § 107(a)(4)(B), and costs of reimbursement
to another person pursuant to a legal judgment or settle-
ment are recoverable only under § 113(f).” Id.
The Supreme Court has thus left some aspects of
this issue up in the air. We recognize that in the course
of NCR’s contribution actions, the district court here
has concluded that section 107(a) is unavailable to NCR,
for the simple reason that section 113(f) appears to be
available: it thought that these were mutually exclusive
remedies. But the Supreme Court, in the passage just
quoted, intimated that the two statutes may not
always be mutually exclusive. The Second Circuit has
concluded that parties that incurred costs following a
consent order may seek cost recovery under sec-
tion 107(a). W.R. Grace & Co.-Conn. v. Zotos Int’l, Inc.,
559 F.3d 85, 89 (2d Cir. 2009). The Eleventh and
Eighth Circuits appear to have come out the other way.
Solutia, Inc. v. McWane, Inc., 672 F.3d 1230 (11th Cir. 2012);
Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 603
(8th Cir. 2011).
All of this is too uncertain to drive the result in the
present case. If and when the time comes, NCR will be
No. 12-2069 23
free to explore whatever possibilities may still be
available to it for either contribution or cost recovery.
What is available will of course depend in part on any
appeal that it might take from the district court’s order
on this subject—a topic that is not before us at this
time. For now, we conclude that it is an open ques-
tion whether, and if at all to what extent, NCR might
be able in future legal proceedings to recoup any costs
it should not have paid. Thus, the district court’s
weighing of the equities did not amount to an abuse
of discretion. Its preliminary injunction requiring NCR
to complete the specified 2012 remediation work is there-
fore A FFIRMED.
24 No. 12-2069
Appendix
8-3-12