Environmental Law — CERCLA; apportionment

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United States Court of Appeals For the Seventh Circuit

Civil

Environmental Law — CERCLA; apportionment

It was not error for the district court to conclude that the costs of cleaning PCBs from the Fox River were not capable of apportionment.

“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 conclusion 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 apportionment. 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 VT. J. ENVT’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 just this kind of multiple sufficient causes of an environmental harm.”

Affirmed.

12-2069 U.S. v. NCR Corp.

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Wood, J.