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United States of America, et al v. George A. Whitingpaperco.

May 4, 2011

UNITED STATES OF AMERICA, ET AL., PLAINTIFFS-APPELLEES,
v.
GEORGE A. WHITING PAPER CO., ET AL., DEFENDANTS-APPELLEES.
APPEAL OF:
APPLETON PAPERS INC. AND NCR CORPORATION, INTERVENORS.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 09-C-692-William C. Griesbach, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED JANUARY 12, 2011

Before KANNE and TINDER, Circuit Judges, and HERNDON, District Judge.*fn1

In 2009, the United States and the State of Wisconsin ("the Governments") filed suit in federal district court against eleven of the potentially responsible parties ("PRPs") in an environmental cleanup, seeking response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA). Shortly thereafter, the Governments filed notice of a de minimis consent decree pursuant to CERCLA § 122(g). Eventually, the Governments moved for settlement. Appleton Papers Inc. and NCR Corporation intervened. The district court granted the settlement motion over the inter-venors' opposition. Later, the Governments moved for a de minimis settlement with a twelfth defendant, and the district court granted this motion. Appleton and NCR appealed the grant of both settlement motions. We affirm.

I.BACKGROUND

The Fox River in Wisconsin is heavily contaminated with Polychlorinated biphenyls ("PCBs"). Appleton and NCR are responsible for much of these PCBs. They contributed significant amounts of Aroclor 1242, the most prevalent PCB in Fox River. The river also contains other PCBs, including Aroclor 1254 and Aroclor 1260. Appleton, NCR, and a few other PRPs are currently paying to clean up Fox River in compliance with a 2007 Environmental Protection Agency order.

Appleton and NCR are seeking contribution, in a separate suit, from many other PRPs. These include the twelve PRPs subject to the consent decrees in this suit:

Neenah Foundry Company; Green Bay Metropolitan Sewerage District; the City of De Pere; Procter & Gamble Paper Products Company; Union Pacific Railroad Company; Green Bay Packaging, Incorporated; Heart of the Valley Metropolitan Sewerage District; Lafarge Corporation; Leicht Transfer and Storage Company; Wisconsin Public Service Corporation; International Paper Company; and George A. Whiting Paper Company (the "de minimis defendants").

In 2009, the Governments filed suit against the de minimis defendants under CERCLA §§ 106 and 107. See 42 U.S.C. §§ 9606, 9607. The Governments then filed two separate consent decrees-one for the City of De Pere, the other for the remaining de minimis defendants. De Pere agreed to pay $210,000 to satisfy its liability. The others agreed to pay a combined total of $1,875,000.

The Governments estimated that the total cleanup cost would be, accounting for uncertainty, $1.5 billion. They also estimated that each of the de minimis defendants had discharged no more than 100 kilograms of PCBs and that, in total, 230,000 kilograms of PCBs had been discharged into the Fox River. The total discharge estimate is a conservative one, based on a low-end estimate of Aroclor 1242, not total PCBs. The Governments based their individual contribution estimates on the de minimis defendants' responses to CERCLA § 104(e) information requests ("§ 104(e) requests"),*fn2 on discovery responses from Appleton and NCR's contribution suit, and on statements by the de minimis defendants certifying that they had turned over all information related to their use of PCBs.

The Department of Justice filed notice of the consent decrees in the Federal Register and solicited public comment. Appleton and NCR objected to both settlements, arguing that the settlements underestimated the de minimis defendants' contributions. Appleton and NCR based their objections on studies suggesting that the Governments had underestimated the amount of Aroclor 1254 and 1260 in the Fox River. These studies also provided direct evidence of PCB use by some de minimis defendants. The Governments agreed with NCR on one point: they recognized that Green Bay Metro Sewerage may have discharged more than 100 kilograms of PCBs. Appleton and NCR claimed Green Bay Metro Sewerage had discharged up to 324 kilograms. The Governments made an even more cautious estimate of 480 kilograms, and Green Bay Metro agreed to a corresponding payment of $325,000. The remaining de minimis defendants' payments remained the same.

After the notice and comment process, the Governments moved for settlement in the district court. Appleton and NCR intervened and opposed the motions for settlement. The district court approved both settlement decrees and granted the motions for settlement. Appleton and NCR then appealed.

II.ANALYSIS

In reviewing the consent decrees, we are constrained by a double dose of deference. See United States v. Cannons Eng'g Corp., 899 F.2d 79, 84 (1st Cir. 1990). First, the trial court must defer to the expertise of the agency and to the federal policy encouraging settlement. In re Tutu Water Wells CERCLA Litigation, 326 F.3d 201, 207 (3d Cir. 2003). Thus, the district court must approve a consent decree if it is reasonable, consistent with CERCLA's goals, and substantively and procedurally fair. Id. ...


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