Environmental Law — CERCLA

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U.S. Court of Appeals for the 7th Circuit

Civil

Environmental Law — CERCLA

CERCLA preempts state law counterclaims.

“Like PMC, Glatfelter and WTM are not ‘victim[s] of toxic-waste contamination in any realistic sense.’ Id. Their common-law theories all present the same theory of causation at bottom: NCR’s common-law torts caused the counterclaiming defendants to incur CERCLA liability, and therefore they are entitled to damages from NCR. But CERCLA was written to ensure that parties like the defendants would be liable so that someone would be available to pay for the environmental cleanup. The situation the defendants describe is the exact scenario that CERCLA § 113(f) is meant to cover, when ‘the less guilty of two tortfeasors’ is trying to recover against the other. PMC, Inc., 151 F.3d at 618. We will not use state law effectively to undo CERCLA’s remedial design — a design meant to protect the environment, not parties that dumped hazardous waste for years. The two regimes cannot coexist while remaining faithful to Congress’s explicit purposes, and thus the common-law counterclaims must be preempted. The district court is affirmed on this point.”

“We REVERSE the district court’s judgment with regard to Appvion’s ability to bring suit under CERCLA § 107(a). We VACATE the decision to hold NCR responsible for all of the response costs at operable units 2 through 5 in contribution. We AFFIRM the following decisions: that NCR may proceed only under CERCLA § 113(f); that NCR is not liable as an arranger; that Glatfelter’s insurance settlement may not be offset against NCR’s contribution share; that NCR can be required to contribute for natural resource damages; that Glatfelter’s counterclaim based on the discharges at Portage should be dismissed; and that the defendants’ state-law counterclaims are preempted. This case is REMANDED for proceedings consistent with this opinion.”

Affirmed in part, Reversed in part, and Vacated in part.

13-2447, 13-2522, 13-2568, 13-2570, 13-2572, 13-2605, 13-2606, 13-2607, 13-2631, 13-2645, & 13-2866 NCR Corp. v. George A. Whiting Paper Co.

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