On July 5, 2011, this Court denied the governments motion for a preliminary injunction against Defendants NCR and Appleton Papers Inc. In doing so, it found that although the government had met the standard requirements for obtaining preliminary injunctive relief, it appeared to be unlikely to prove API was a liable party. The government filed another motion for a preliminary injunction on March 19, 2012. Subsequently, this Court ruled that API was not a liable party under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., , and the government tailored the proposed preliminary injunction to NCR alone.
These developments have removed the hurdle that prevented the grant of injunctive relief in 2011. Although NCR has made some additional arguments to bolster the divisibility defense it raised in 2011, the Judge concluded that preliminary injunctive relief is warranted here. Accordingly, the governments motion for a preliminary injunction will be granted.
NCR argued that the harm to the river is divisible and it would only be responsible for at most 9% of the costs. The court granted the injunction after rejecting the divisibility argument. The court found that divisibility for CERCLA claims would only rarely be granted. Here, NCR's divisibility argument was based on the volume of PCBs it contributed to the cleanup site. The court found that the volume, even if correct, did not reflect a division of the harm because PCB placement, toxicity, and effect on human population were the true harms. These harms had little to do with the volume of PCB discharged.
Therefore, NCR was required to immediately begin a dredging operation at least 660,000 cubic yards of river sediment. The court's order found not only the corporation bound by the injunction, but NCR's officers, agents, employees, and "attorneys who are involved in decision-making concerning the performance or direction of remediation work …".