United States: District Court Reverses Course And Rejects Divisibility Cap On Superfund Liability

Last Updated: October 30 2015
Article by Duke K. McCall, III and Conrad W. Bolston

A Wisconsin district court has reversed its prior ruling that NCR Corporation's liability for contamination in the Fox River was divisible and therefore limited, holding that the evidence used to establish the divisibility defense was unreliable.

Five months after ruling that NCR Corporation's (NCR's) liability for contamination in the Fox River is limited to NCR's share of contamination contributed to the river, a Wisconsin district court has reversed itself, holding the evidence that NCR used to establish its divisibility defense was unreliable.1 The court's decision comes after the United States and multiple other parties asked the court to reconsider its earlier finding that NCR had established that its contribution to the harm was divisible and, therefore, that NCR was not jointly and severally liable for costs to clean up the Fox River. In support of their position, the parties seeking reconsideration argued that the evidence offered to establish divisibility was speculative and therefore, the court erred in relying on it. The court agreed, holding—in its third opinion on the issue—that NCR failed to meet its burden of establishing both that the harm was theoretically capable of divisibility and that there was a reasonable basis for apportionment. Notably, however, the court left undisturbed its prior conclusion that evidence of volumetric contribution may suffice to establish the divisibility defense.

Liability Under Superfund

Liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)2 is, by default, joint and several, meaning that any contributor of pollution to a site can be held liable for the entire cost to clean up the site, notwithstanding other parties' contribution to the pollution. The US Supreme Court confirmed in Burlington Northern & Santa Fe Railway Co. v. U.S., 556 U.S. 599 (2009), however, that where a potentially responsible party (PRP) carries its burden of showing that the harm is capable of being divided and damages reasonably may be apportioned among the parties, the PRP is only liable for its own contribution to the harm. Proving divisibility of harm and a reasonable basis for apportionment therefore defeats joint and several liability. Proving divisibility of harm, however, has proved difficult.

The Fox River Decisions

The case before the district court involved liability for polychlorinated biphenyl (PCB) contamination in portions of the Fox River and Green Bay, Wisconsin. Remediation of the river and bay (the "site") is ongoing and constitutes one of the most expensive Superfund cleanups to date. The United States sued NCR, seeking to compel it to clean up the site. NCR presented a divisibility defense—that a reasonable basis for apportionment existed, and, therefore, NCR could not be held jointly and severally liable for the entire site cleanup.

After a 2012 trial, the district court held NCR had failed to prove that the harm at issue was divisible for purposes of determining liability under CERCLA, making NCR jointly and severally liable for the entire cleanup. However, on appeal, the US Court of Appeals for the Seventh Circuit took issue with the district court's "binary" test for determining whether the harm was divisible, reversed the district court's determination of joint and several liability, and directed the district court in assessing divisibility to focus on NCR's contribution to the PCB contamination that caused harm to human health and the environment rather than on the propensity of NCR's releases to require remedial action.

On remand, the district court noted that, prior to the Seventh Circuit's decision, the prevailing practice in assessing whether harm was capable of being divided was to focus on whether the PRP's releases triggered the need for a remedy. After the Seventh Circuit's opinion, the court concluded that "the harm is more properly defined as a release's toxicity or danger to human health and the environment" as opposed to the remedy or costs triggered by NCR's releases. The court established a new framework where "the harm is the contamination," and the second step in the analysis, the apportionment of "damages," is to be assessed in terms of "each party's causation of remedial response costs." Using this framework, the court reviewed the expert testimony at trial and found NCR had demonstrated that the evidence was sufficient to establish an upper limit of how much of the contamination in the relevant section of the site could be attributed to NCR.

In reaching its conclusion, the court relied on an apportionment model developed by NCR's expert, who, in turn, relied on contamination estimates developed by another expert, Dr. Wolfe. In its opinion finding that the harm was divisible, the court acknowledged Dr. Wolfe's estimates were subject to multiple uncertainties, including "assumptions about releases, dredging and the like," but dismissed those uncertainties as issues that "go with the territory" of applying the divisibility defense to a river with multiple PRPs and an imperfect historical record.

Divisibility Revisited (Again)

Upon reconsideration, the court reversed its holding that NCR had established the divisibility defense. The court determined that NCR's reliance on Dr. Wolfe's testimony was misplaced because Dr. Wolfe's estimates contradicted the court's own findings of fact concerning the contribution of PCBs to the river from another source, which called into question the estimates presented by NCR (and used by the court) of NCR's contribution of contamination to the river. As the court explained, NCR's "use of Wolfe's flawed estimates [could not] be expected to produce a reliable answer to the question of how much NCR contributed to PCB concentrations in [the river]." Therefore, NCR had failed to carry its burden of establishing its contribution to the harm (i.e., that the harm was theoretically divisible).

The court also concluded that NCR failed to establish a reasonable basis for apportionment because the apportionment model developed by NCR was based on incomplete and flawed information. In particular, the court noted that NCR's expert was missing two key estimates from Dr. Wolfe, and therefore, it was "a mystery" as to how NCR's expert developed his apportionment of costs to NCR. Moreover, as noted above, the court considered the estimates of Dr. Wolfe that NCR did rely on to be flawed.


In its earlier opinion finding that NCR had established the divisibility defense, the district court adopted a "simplified" approach to divisibility, which focused on a PRP's volumetric contribution. On reconsideration, the court did not deviate from its simplified volumetric analysis. The court did, however, scrutinize closely the evidence relied on to establish divisibility. In short, the court's opinion suggests the challenges that parties face in proving divisibility may persist, even under a volumetric approach to divisibility.


[1]. United States v. NCR Corp., No. 10-C-910 (E.D. Wis. Oct. 19, 2015).

[2]. 28 U.S.C. § 9601 et seq.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions