## Facts

- From the mid-1950s through the 1970s, several Wisconsin paper mills discharged wastewater containing polychlorinated biphenyls (PCBs) into the Lower Fox River.
- The Lower Fox River and Green Bay Superfund Site was placed under cleanup actions governed by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
- EPA and Wisconsin regulators divided the Site into five geographical “operable units” (OU1–OU5) for investigation and remediation.
- In 2007, after amendments to the cleanup plan for parts of the Site, EPA issued a unilateral administrative order (UAO) under CERCLA § 106 directing several potentially responsible parties (PRPs) to perform cleanup work in the portion of the Site downstream of Little Lake Butte des Morts (generally OU2–OU5).
- P.H. Glatfelter Company was treated as a PRP as corporate successor to Bergstrom Paper Company, which operated a paper-recycling mill and discharged PCB-contaminated wastewater into Little Lake Butte des Morts (OU1).
- The United States sued in the Eastern District of Wisconsin to enforce EPA’s § 106 UAO. (Other CERCLA claims, including response-cost and natural-resource-damage claims, remained pending and were not the focus of this appeal.)
- Glatfelter sought summary judgment, arguing the government had to prove Bergstrom’s PCB discharges reached OU4 in sufficient quantities to cause the specific response costs incurred there.
- The district court rejected that “nexus” requirement, denied Glatfelter’s motion, and held Glatfelter liable for downstream response costs.
- After resolving additional matters (including issues affecting NCR) through summary judgment and a bench trial, the district court entered declaratory relief and a permanent injunction compelling compliance with the UAO.
- NCR and Glatfelter appealed.

## Issues

1. In a § 106 enforcement action, must the United States prove a site-unit-specific causal link between Glatfelter’s OU1 discharges and particular downstream response costs (e.g., in OU4), or is it enough to show a release of hazardous substances at the facility and the incurrence of response costs to address a release at that facility?
2. Did the district court properly reject NCR’s divisibility (apportionment) defense to joint and several CERCLA liability?
3. Did the district court properly enter a permanent injunction compelling compliance with EPA’s § 106 UAO without making the findings required under traditional standards for permanent injunctive relief?

## Decision

- The Seventh Circuit affirmed the district court’s rejection of Glatfelter’s causation theory and upheld Glatfelter’s liability for downstream response costs without requiring proof that its discharges reached a specific downstream OU in a cost-causing amount.
- The Seventh Circuit reversed in part and remanded because the district court mishandled NCR’s divisibility defense and needed to reconsider that defense under the proper framework.
- The Seventh Circuit vacated the permanent injunction enforcing the UAO and remanded for further proceedings because the district court did not apply the traditional requirements for permanent injunctive relief.

## Legal Principles

- Under CERCLA, once the government proves a defendant is a PRP connected to a facility where there was a release (or threatened release) of hazardous substances and response costs were incurred in response, the government is not required at the liability stage to match each defendant’s specific discharge to each discrete downstream cost item.
- Joint and several liability is the default for indivisible harm under CERCLA, but a defendant may avoid joint and several liability by proving the harm is divisible and that there is a reasonable basis for apportionment; the court must evaluate the evidence offered for divisibility rather than assuming indivisibility.
- A district court may enforce a CERCLA § 106 order through injunctive relief, but entry of a permanent injunction still requires the court to apply traditional equitable standards and make findings that justify that remedy; an injunction should not issue automatically just because a UAO exists.

## Conclusion

United States v. P.H. Glatfelter Co. holds that, for CERCLA liability in this § 106 enforcement setting, the government did not have to trace Bergstrom’s OU1 PCB discharges to a particular downstream operable unit’s response costs to hold Glatfelter liable, but the Seventh Circuit required renewed consideration of NCR’s divisibility defense and sent the case back because the district court entered a permanent injunction enforcing EPA’s order without the findings demanded for permanent injunctive relief.


United States v. P.H. Glatfelter Co., 768 F.3d 662 (2014)