Cleanup of Fox River Toxins Must Forge Ahead

     CHICAGO (CN) – A Wisconsin paper mill must continue decontaminating the Fox River, though it claims that it has done more than its fair share of the work, the 7th Circuit ruled.
     The Fox River, which runs from Lake Winnebago into Green Bay, hosts the densest concentration of paper mills in the world.
     “Paper manufacturing, unfortunately, has traditionally come at a high environmental price, in the form of serious water pollution,” Judge Diane Wood wrote for the federal appeals court. “Wisconsin’s vast industry has left the Lower Fox River heavily contaminated with PCBs.”
     PCBs, or polychlorinated biphenyls, are long-lasting and can cause health problems including cancer and birth defects in both people and animals.
     Most PCBs in the river are attributable to the production of “carbonless” copy paper, used to make a copy of an original handwritten document. NCR Corp. first developed the product in 1954.
     Production of carbonless paper led to the discharge of approximately 230,000 kg of PCBs into the Lower Fox River from 1954 to 1971.
     In 1998, the Environmental Protection Agency and Wisconsin Department of Natural Resources began to develop a remediation plan to remove contaminants from the water. Areas with an average concentration of PCBs greater than 1.0 parts per million, the amount considered toxic to humans, had to be dredged or capped.
     Under the Comprehensive Environmental Response, Compensation, and Liability Act,
     After NCR was classified as a potentially responsible party and the EPA issued a directive in November 2007, NCR took a lead role in remediation efforts.
     Claiming that it should not be responsible for 100 percent of the remediation work because it produced between just 6 and 9 percent of the total contaminants, NCR has tried to have other paper companies offset the $50 million that it has spent.
     In 2009, however, a federal judge found that NCR may actually owe those plants for their contributions to cleanup efforts.
     This finding stemmed from the 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,'” Wood wrote.
     While both decisions were still pending, NCR told the EPA that it would discontinue remediation efforts because its liability fell below the costs it had already incurred. The company cut its work in half in 2011 and ceased cleanup operations altogether this year.
     The U.S. government and Wisconsin sued to keep NCR on the job. U.S. District Judge William Griesbach granted a preliminary injunction against NCR, which has since resumed cleanup efforts.
     On appeal, expedited at NCR’s request, the 7th Circuit affirmed Griesbach’s ruling that the harm caused by pollution is not capable 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,'” Wood wrote for a three-judge panel. “We are convinced that the facts in this case are an example of just this kind of multiple sufficient causes of an environmental harm.”
     The percentage of NCR’s contribution to the total pollution does not dictate how much of the cleanup costs the company must pay because the need for cleanup is not linearly correlated to the amount of PCBs a mill discharged, the court found.
     Cleanup must occur in all areas where contamination exceeds 1.0 ppm, and a cubic yard of sediment costs the same to clean whether it contains 10 ppm or 100 ppm.
     “The details of that cleanup may vary depending on exactly how much PCB is present, but not in any way that suggests that the underlying harm caused – the creation of a hazardous, polluted condition – is divisible,” Wood wrote.
     The court also rejected NCR’s attempt to distance cleanup costs from calculating environmental harm.
     “We agree with the Ninth Circuit that ‘contamination traceable to each defendant’ is a proper measure of the harm, and our analysis above is consistent with that definition,” Wood wrote.
     “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,” she added.
     A preliminary injunction was appropriate because delaying 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,” the court determined.
     Wood added that stopping the pollution from reaching Green Bay takes even greater priority because it is impossible to remove PCBs once they enter deep water.
     “There will be time enough later to sort out the various parties’ liabilities,” Wood concluded, noting that NCR can still appeal the trial court’s adverse ruling.
     In the meantime, cleanup efforts must continue.

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