In a November 23, 2012 decision, a court ruled that companies that had allegedly released polychlorinated biphenyl (PCBs) contaminants into a reservoir that fed into the Lower Fox River could face Superfund liability for cleanup of a downstream section of the river, even if their releases were too small by themselves to create response costs (U.S. v. NCR Corp., Case No. 10-C-910 [E.D. Wis., Nov. 23, 2012]). The U.S. District Court for the Eastern District of Wisconsin concluded that a "nexus" was not required between a particular defendant's release and a specific response cost. Rather, it is enough that the defendant released a pollutant, and response costs were incurred as part of a cleanup. The court found that the defendants were essentially asserting a de minimis defense, which does not exist in CERCLA.
The Lower Fox River begins at Lake Winnebago, in Wisconsin, and runs for about 40 miles northeast until it discharges into Green Bay, a part of Lake Michigan. In the 1890s, paper mills started to operate on Wisconsin's rivers, and the highest concentration of mills was on the Lower Fox River. The Lower Fox is contaminated with PCBs, which are known to cause health problems in both humans and animals. In 1954, NCR Corporation developed carbonless copy paper, a probable source of many of the PCBs found in the river. Between 1954 and 1971, a number of paper manufacturers produced this paper, discharging approximately 230,000 kilograms of PCBs into the river, and contaminating 11 million tons of sediment.
In 1998, EPA and the Wisconsin Department of Natural Resources started developing a CERCLA cleanup plan, and a final river cleanup plan was issued in 2002 after extensive public comment. Under the plan, the river was divided into five sections, or operable units (OUs), and remediation is required wherever the average PCB concentration exceeds 1.0 ppm. The plan specifies a combination of dredging and capping at sites within the OUs, depending on river dynamics and PCB concentrations.
OU1 is a 1,200-acre reservoir of water that connects Lake Winnebago, where water moves slowly, to the Lower Fox River. OU4 is divided into an upper and lower half, where remediation is ongoing, while OU5 includes portions of Green Bay that are contaminated with PCBs. As of August 2012, approximately 287,000 cubic yards of PCB-contaminated sediments had been dredged from the river. Remediation in the first three OUs is largely...