United States of America et al v. NCR Corporation et al
Filing
1217
DECISION and ORDER on CROSS MOTIONS FOR SUMMARY JUDGMENT ON RECOVERY OF RESPONSE COSTS FROM P.H. GLATFELTER CO. signed by Chief Judge William C Griesbach on 2/5/18, granting in part and denying in part 1125 the United States' Motion for Part ial Summary Judgment; granting 1134 the State of Wisconsin's Motion for Summary Judgment on its claim for declaratory relief; granting in part and denying in part 1141 Glatfelters's Motion for Partial Summary Judgment; and granting [117 1] Glatfelter's Motion for Reconsideration. The clerk is directed to set the matter on the court's calendar for a telephone conference with the United States and Glatfelter to address further scheduling. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA and
THE STATE OF WISCONSIN,
Plaintiffs,
v.
Case No. 10-C-910
NCR CORPORATION, et al.,
Defendants.
DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
ON RECOVERY OF RESPONSE COSTS FROM P. H. GLATFELTER CO.
In what remains of this enforcement action under Section 107(a)(4) of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607(a)(4), the
Plaintiffs seek recovery from defendant P. H. Glatfelter Company of more than $33 million in
unreimbursed costs (including statutory prejudgment interest) incurred by the Environmental
Protection Agency (EPA) in remediating the PCB contamination of the lower Fox River (the Site)
through June 30, 2015. Glatfelter, together with other defendants, including NCR Corporation and
Georgia Pacific, were previously found jointly and severally liable for the $1.3 billion clean-up that
has continued for close to twenty years. See United States v. P. H. Glatfelter Co., 768 F.3d 662 (7th
Cir. 2014), and ECF No. 1033. A trial in this action on the amounts that remained owing for the
clean-up and on the apportionment of liability among the remaining, non-settling defendants,
Appvion, and Georgia Pacific in the related contribution action, NCR v. Whiting et al, No. 08-C0016, was scheduled to commence on May 8, 2017. ECF No. 1152. The trial was removed from
the calendar and all proceedings stayed on January 20, 2017, however, after the Plaintiffs filed a
notice of settlement and a proposed consent decree they had entered into with NCR and Appvion,
the successor company to Appleton Papers, Inc., which was seeking reimbursement from the other
defendants for clean-up costs it had allegedly paid as a volunteer. ECF Nos. 1169, 1183.
Following the required public comment period and further consultation with the parties, the
Plaintiffs filed their joint motion for court approval of a revised consent decree on March 29, 2017.
Over Glatfelter’s objection, the court approved the revised consent decree, which resolved most of
the issues that remained for trial, in a decision and order entered on August 23, 2017. That decision
is currently on appeal. What remains before the court are the cross motions for summary judgment
of the United States and Glatfelter on the United States’ claim for unreimbursed past response costs
(through September 30, 2015) associated with the Site as a whole or response work in Operable
Units 2 through 5 at the Site. Both the United States and the State of Wisconsin also seek a
declaration that Glatfelter is liable for any future related response costs. This decision will address
those motions. It will also address Glatfelter’s motion for reconsideration of the court’s January 3,
2017 order granting the government’s motion in limine precluding Glatfelter from offering evidence
at trial intended to show that the amount of money that was received by the Plaintiffs in previous
settlements and allocated to the Natural Resource Damage Assessment and Restoration (NRDAR)
fund substantially exceeds the actual damages to natural resources caused by the PCB contamination
and the costs of its assessment. ECF No. 1171.
A. Statutory Framework
Under Section 107(a)(4)(A) of CERCLA, responsible parties must pay “all costs of removal
or remedial action incurred by the United States Government . . . not inconsistent with the national
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contingency plan. 42 U.S.C. § 9607(a)(4)(A). The National Contingency Plan (NCP), promulgated
as a regulation pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, prescribes requirements for
removal and remedial actions. Consistent with the broad language of the statute and its remedial
purpose, “all costs” has been held to include the direct costs of actual clean-up, as well as a broad
range of costs, such as investigative costs and enforcement costs. The term has also been held to
include as indirect costs administrative and overhead costs incurred in managing the greater
Superfund program. United States v. W. R. Grace & Co., 429 F.3d 1224, 1250 (9th Cir. 2005);
United States v. E. I. DuPont De Nemours and Co., Inc., 432 F.3d 161, 178 (3d Cir. 2005); United
States v. R. W. Meyer, Inc., 889 F.2d 1497, 1499–1508 (6th Cir. 1989). In addition, the statute
expressly allows for the recovery of interest. 42 U.S.C. § 9607(a)(4). Once recovered, such funds
are deposited with the United States Treasury to replenish the Hazardous Substance Superfund,
which is used to finance CERCLA cleanup efforts across the nation. See 42 U.S.C. §§ 9601(11),
9604; 26 U.S.C. § 9507; see also United States v. Bestfoods, 524 U.S. 51, 55 (1998).
Under Section 107(a)(4)(C), “damages for injury to, destruction of, or loss of natural
resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from
such a release” of hazardous substances are also recoverable from responsible parties. 42 U.S.C.
§ 9607(a)(4)(C).
Liability for natural resource damage (NRD) goes to the United States
Government and the State in which the damage occurs. Liability for NRD also extends to any Indian
tribe where the damage is to natural resources “belonging to, managed by, controlled by, or
appertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of
such tribe, if such resources are subject to a trust restriction on alienation.” 42 U.S.C. § 9607(f)(1).
Funds recovered for NRD are held in trust by the United States Department of the Interior (DOI)
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“for use only to restore, replace, or acquire the equivalent of such natural resources.” Id. Any
determination or assessment of damages to natural resources made in accordance with the applicable
regulations has “the force and effect of a rebuttable presumption on behalf of the trustee in any
administrative or judicial proceeding under this chapter or section 1321 of Title 33.” 42 U.S.C.
§ 9607(f)(2)(C).
In cases such as this where multiple parties are responsible for the discharge of hazardous
substances and the resultant pollution, the general rule is that each party responsible for the discharge
is jointly and severally liable for the entirety of the clean-up and damages resulting therefrom, unless
that party can establish a reasonable basis for apportionment. See Burlington Northern & Santa Fe
Ry. Co. v. United States, 556 U.S. 599, 614 (2009) (“Not all harms are capable of apportionment,
however, and CERCLA defendants seeking to avoid joint and several liability bear the burden of
proving that a reasonable basis for apportionment exists.”). Even where joint and several liability
obtains, a party that pays more than its fair share can seek contribution from any other party that is
liable or might be liable. Finally, and key to the dispute between the parties here, is Section
113(f)(2), which governs settlement. That Section states:
A person who has resolved its liability to the United States or a State in an
administrative or judicially approved settlement shall not be liable for claims for
contribution regarding matters addressed in the settlement. Such settlement does not
discharge any of the other potentially liable persons unless its terms so provide, but
it reduces the potential liability of the others by the amount of the settlement.
42 U.S.C. § 9613(f)(2) (italics added).
B. Previous Settlements, Allocation of Payments and Remaining Amounts Due
Over the past two decades, the Plaintiffs have resolved the liability of dozens of parties
alleged to have contributed to the PCB contamination of the Site through a number of judicial
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consent decrees and administrative orders. Of the hundreds of millions of dollars expended in the
cleanup or recovered by the Plaintiffs, the United States claims that roughly $33 million remains of
its own costs incurred for the cleanup of the non-OU1 portion of the Site that has not been
reimbursed. This amount represents direct and indirect costs incurred by the EPA, together with
pre-judgment interest through September 30, 2015. The specific amounts are set forth in an
Itemized Cost Summary, which contains a tabular breakdown of the various costs under the headings
EPA Payroll and Travel Costs, Contractor Costs, Miscellaneous Costs, Inter-Agency Agreement
Costs, Superfund Cooperative Agreement Costs, EPA Indirect Costs, and Prejudgment Interest.
ECF Nos. 1132 ¶¶ 5, 7; 1133 at 10. It is this amount that the United States seeks to recover from
Glatfelter, the last non-settling defendant.
Glatfelter does not dispute that the EPA incurred the vast majority of these costs in its
response to the PCB contamination of the Site. In fact, it appears Glatfelter has no objection to well
over $30 million of the total unreimbursed response costs the government claims EPA incurred. The
government contends that NCR’s objection to an additional $2 million, which Glatfelter has joined,
can be readily resolved in favor of the government, leaving the government’s right to recover roughly
$32 million in unreimbursed response cost clear as a matter of law. With Glatfelter’s joint and
several liability already established, the government contends that it is entitled to summary judgment
for at least this amount, with the remaining portion of its claim to be determined at trial unless the
parties are able to reach agreement on the relatively small amount still in dispute.
If that was the end of the matter, the resolution would be clear. Unfortunately, it is not.
Glatfelter points out that the Plaintiffs have allocated more than $100 million dollars of the
settlement proceeds to the NRDAR Fund maintained by the United States Department of the Interior
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for NRD caused by the release of PCBs to the Site. Glatfelter contends that this amount vastly
exceeds the actual NRD. In support of this contention, Glatfelter notes that over $60 million of the
funds transferred to the NRDAR Fund have not yet been applied to any response costs or NRD.
Those funds, Glatfelter contends, “remain unspent in the NRDAR Fund for various as-yetundetermined future NRD projects at the Fox River site.” ECF No. 1157 at 2. Glatfelter has
proffered evidence in the form of the opinion of its experts that the NRD injury suffered at the Fox
River site already has been more than adequately compensated by the over $40 million spent to date.
ECF No. 1106-2. Thus, Glatfelter contends, the more than $60 million remaining in the NRDAR
Fund constitutes a windfall. More importantly, Glatfelter contends that by allocating such a large
portion of the settlement proceeds to the NRDAR Fund, the Plaintiffs have deprived the non-settling
defendants of the benefit of the reduction in liability to which they are statutorily entitled under
Section 113(f)(2). Once the full amount of the money already paid in settlement of the claims is
properly allocated, Glatfelter contends, the remaining unreimbursed costs the United States is
seeking is reduced to zero.
The Plaintiffs dispute Glatfelter’s claim that the amount of the settlements allocated to the
NRDAR Fund for the Site exceed the actual NRDs. In fact, the Plaintiffs argue that notwithstanding
their decision to withdraw their NRD claim after the last series of settlements before the most recent
consent decree with NCR and Appvion, the NRDAR Fund trustees’ formal damage assessment is
for far more than the amount of the settlements allocated to the Fund. Plaintiffs note that the DOIcommissioned study of past and future recreational fishing damages alone were estimated in 1998
dollars at $123 million. ECF No. 1155 at 8. Thus, the Plaintiffs contend, a factual dispute precludes
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entry of summary judgment in Glatfelter’s favor even if its statement of the law is correct. The
Plaintiffs’ primary argument, however, is that Glatfelter’s statement of the law is wrong.
The difficulty with Glatfelter’s position, at least from the perspective of the government, is
that the additional $60 million that Glatfelter claims should be used to reduce its liability for the
government’s remaining unreimbursed response costs is not available for that purpose. Pursuant to
a series of consent decrees, that money has been allocated to NRD and transferred to the NRDAR
Fund and cannot be used to pay for response costs. As Glatfelter well knows, the money so allocated
is held in a separate account under the control of the federal, state and tribal co-trustees and cannot
be used to pay for EPA cleanup expenses. Sums recovered by the federal or state government for
NRD, pursuant to 42 U.S.C. § 9607(a)(4)(C), are held by the Department of the Interior and can be
used only “to restore, replace, or acquire the equivalent of such natural resources.” 42 U.S.C.
§ 9607(f)(1). Thus, the government argues, these funds cannot be used to reimburse the EPA and
replenish the Superfund for the response costs it has incurred that remain outstanding.
In addition to the overpayment to the NRDAR Fund, Glatfelter also notes that the State of
Wisconsin holds a surplus of approximately $4 million over the amount of the costs it incurred as of
September 30, 2015. This amount, Glatfelter contends, also represents settlement recoveries that
have not been applied to reduce the potential liability it faces. Thus, Glatfelter argues, the United
States’ cost recovery claim must also be reduced by this amount as required by Section 113(f)(2).
C. NRD Allocation
1. Statutory right to reduction
The United States contends that Glatfelter’s argument that amounts allocated to the NRDAR
Fund can be used to reduce its liability for the unreimbursed response costs the EPA incurred in
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connection with the cleanup has no basis in the law. Indeed, the United States contends that
Glatfelter’s argument flies in the face of Section 113(f)(2), the very provision upon which Glatfelter’s
argument is based. In the view of the United States, “§ 113(f)(2) only allows a reduction of EPA’s
response cost claim for the ‘amount of the settlement’ actually earmarked and paid to settle that EPA
response cost claim.” ECF No. 179 at 2–3. The government notes that “Congress created separate
statutory claims for response costs and NRD, to be brought by different claimants, with different
statutes of limitations, and with recoveries directed to different funds dedicated to different
purposes.” Id. at 3.
The differences between response cost and NRD claims, the government
contends, are not merely technical distinctions. Id. It argues that neither the statute nor the case law
lend any support for Glatfelter’s argument that settlement payments on separate claims involving
different claimants and separate types of losses can offset each other. Id.
I disagree with the government’s contention that Glatfelter’s argument has no support in the
law. To the contrary, Glatfelter’s argument is based on a plain reading of Section 113(f)(2). To
repeat, that section states that while the government’s settlement with one responsible party does not
discharge the liability of any other responsible party, it does “reduce[] the potential liability of the
others by the amount of the settlement.” The government reads this provision as limiting the amount
of the reduction in the potential liability of non-settling parties to only that portion of the settlement
paid for response costs. But that is not what the statute says. It provides for a dollar for dollar
reduction of the liability of the remaining parties by the “amount of the settlement,” not that portion
of the settlement allocated to response costs.
While it is true that Section 113(f)(1) specifically references “response costs,” the same is not
true of Section 113(f)(2). The government has offered no reason why the settlement provision
8
should be construed so as to limit its effect in such a manner. The fact that money received in
settlement may be for different claims and is to be allocated to separate funds for different purposes
is not a reason to ignore the plain meaning of the statute. More importantly, to adopt the
government’s construction of the statute would insulate the government’s allocation and use of
settlement proceeds from any form of judicial review. The government would be able to minimize
or even eliminate Section 113(f)(2) reductions by simply allocating all or most of the proceeds to
NRDAR funds. For as Glatfelter points out, when the government settles with a responsible party,
it in effect controls the terms of the agreement that govern how the payment received in settlement
will be allocated between the response cost and NRD claims under the settlement agreement. The
settling defendants have no incentive to negotiate the allocation terms as long as both claims are being
dismissed. ECF No. 1157 at 17. What the government chooses to do with settlement proceeds
should not diminish non-settlors' right to full credit for the settlement. The Plaintiffs should not be
able to divert settlement funds to overpay NRD, as Glatfelter claims they have done, and still claim
reimbursement for costs covered by the settlement.
2. Motion for reconsideration
This does not end the matter, however. Prior to the scheduled trial in the case, the court
granted the Plaintiffs’ motion in limine which sought to preclude Glatfelter from introducing evidence
at trial to show that the actual NRD were significantly less than the portion of the settlements that
had been allocated to the NRDAR Fund. In so ruling, I had accepted the Plaintiffs’ argument that
such evidence was barred by “res judicata principles.” ECF No. 1167 at 3. In particular, I noted that
Glatfelter had elected not to object to previous consent decrees that expressly provided for the
allocations it now claims were improper. Indeed, I noted that Glatfelter had shown by its comments
9
on the then most recent consent decrees, which allocated an additional $45 million to the NRDAR
Fund, that it fully realized the effect this allocation would have. Glatfelter had stated in its response
to the Plaintiffs’ motion for approval that it “maintains its belief that the payments of NRDs under
the consent decrees may very well result in overpayment of NRD recoveries” and that such
“overpayment will effectively be lost to the remaining defendants; it will not offset any costs or
damages for which those remaining defendants might be liable.” ECF No. 938 at 4. Nevertheless,
Glatfelter elected not to oppose entry of the consent decree because it expected its fair share of the
remaining costs and damages to be “relatively low” and thus its share of the likely overpayment
“likely small relative to the likely higher cost of litigating the NRD claim.” Id. at 4. Given its
statements at the time, and in the absence of precedent for Glatfelter’s position, I concluded the
Plaintiffs’ motion should be granted. I now conclude that this was error.
At the outset, I note that principles of res judicata are not applicable because there is no
previous action. “[P]rinciples of preclusion are not pertinent until the first lawsuit has been concluded
and a second, separate proceeding is underway.” Mizuho Corp. Bank (USA) v. Cory & Assocs., Inc.,
341 F.3d 644, 653 (7th Cir. 2003). Under the circumstances here, the correct doctrine to consider
is law of the case. Id. Even under this doctrine, however, Glatfelter is not bound by the previous
allocations because there was no judicial determination of the actual NRD.
The allocation of settlement proceeds that Glatfelter now seeks to challenge resulted from
consent decrees entered by the court. Although Glatfelter was a party to the case, it was not a party
to the settlements reflected in the consent decrees. While Glatfelter could have objected to the
motions seeking approval of the consent decrees, its failure to do so does not constitute a waiver of
its right to challenge the allocation later. This is because even if Glatfelter had objected, it would not
10
have been entitled to a final determination of the issue. A district court’s review of a proposed
consent decree in a CERCLA action is deferential. The court “must approve a consent decree if it
is reasonable, consistent with CERCLA's goals, and substantively and procedurally fair.” United
States v. George A. Whiting Paper Co., 644 F.3d 368, 372 (7th Cir. 2011) (citing In re Tutu Water
Wells CERCLA Litigation, 326 F.3d 201, 207 (3d Cir. 2003)). In reviewing a request for approval,
“the trial court must defer to the expertise of the agency and to the federal policy encouraging
settlement.” Id. The general rule is that in cases involving judicial approval of consent decrees,
“[a]ny findings made as part of the approval process go to the reasonableness of the settlement, not
the merits of the dispute.” Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 18A
FEDERAL PRACTICE
AND
PROCEDURE: JURISDICTION 2d § 4443 at 257 (West 2002); see also
Restatement (Second) of Judgments § 27, cmt. e (“In the case of a judgment entered by confession,
consent, or default, none of the issues is actually litigated.”).
It thus follows that Glatfelter is not bound by the allocation of payment for NRD to the
NRDAR Fund previously approved by the court. If at trial Glatfelter is able to establish that the
amount of the previous settlements allocated to the Fund exceeds the actual NRD, Glatfelter is
entitled to a reduction in its own liability to the extent of such excess. Of course, if the Plaintiffs seek
to and are allowed to reassert their NRD claim against Glatfelter and prove the NRD exceeds what
has been collected, Glatfelter may be liable for even more than the government now seeks in response
costs. This is the risk it takes. I also realize that my ruling may mean that the government cannot
collect all of its remaining unreimbursed response costs from Glatfelter. Whether the government
could collect its shortfall from any overpayment it made to the NRDAR Fund is a question that is not
before the court, but it does not alter the effect of section 113(f)(2). In any event, for the reasons
11
set forth above, I conclude that Glatfelter’s motion for reconsideration should be granted. Neither
party is entitled to summary judgment on this issue.
D. State Surplus
Glatfelter also seeks to reduce its liability for the EPA’s unreimbursed response costs by the
roughly $4 million that the State of Wisconsin currently holds and has not expended either for
cleanup of the Site or for NRD. There is no dispute that the State holds such a surplus. The $4
million represents part of the settlement proceeds that have been paid by other responsible parties.
Based again on the language of § 113(f)(2), Glatfelter contends it is entitled to have its liability
reduced by this amount.
The government in response again argues that the EPA’s response costs cannot be reduced
by money held by a separate government department or agency. But again, that is not what the
statute says. Section 113(f)(2) states that the liability of the remaining parties is to be reduced by the
amount of the settlement, not by the amount of the settlement allocated to the EPA’s costs. If the
settlement proceeds exceed that amount that the State incurred as of September 30, 2015, which is
how the government has defined its claim, then Glatfelter is entitled to a dollar for dollar reduction
in its liability as of that date.
The Plaintiffs note that they are continuing to incur ongoing costs for oversight, monitoring,
legal expenses, and expert fees, and thus any surplus is likely to be exhausted in relatively short order.
Indeed, it may have been already. For this reason, the amount of the reduction may be significantly
lessened, if not eliminated with an amendment of the claim. But based on the record as it now stands,
Glatfelter is entitled to a reduction in the government’s cost recovery claim by the amount of the
surplus on settlement funds held by the State of Wisconsin.
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E. Indirect Costs of WDNR Agreement
Glatfelter joined in NCR’s objection to $2,254,697 in indirect costs the EPA was seeking for
its 2013 Cooperative Superfund Agreement with the Wisconsin Department of Natural Resources
(WDNR). The EPA incurs both direct and indirect costs attributable to the Superfund program. The
EPA’s direct costs are accounted for on a site-specific basis. Indirect costs consist of the
administrative and other overhead costs necessary to manage the greater Superfund program and
support the functioning of relevant EPA employees and DOJ attorneys. “The process to allocate, or
distribute, those indirect costs to Superfund is accomplished through an indirect cost methodology”
developed by EPA accountants and financial experts in accordance with the Federal Accounting
Standards Advisory Board #4 on cost accounting for the Federal government. ECF No. 1128 at 2–4.
Neither NCR, nor Glatfelter challenge the EPA’s indirect cost methodology. ECF No. 1133. Indeed,
neither challenged the EPA’s right to recover the indirect costs attributable to the EPA’s 2013
Cooperative Agreement with WDNR. Rather, NCR’s expert simply felt it was unfair to apply the
indirect rate to EPA’s direct costs incurred under the Agreement. ECF No. 1126 ¶¶ 45–47. As NCR
views it, the indirect costs arising out of this agreement result from the EPA routing payments
received from responsible parties in settlement through the Superfund before transferring them to
WDNR for work it preformed at the Site. Given the key admissions by NCR’s own expert, however,
its objection to the indirect costs arising out of the 2013 Cooperative Agreement with WDNR fails.
As the government points out without dispute, the EPA helped fund WDNR’s oversight efforts
through the Cooperative Agreement because NCR and Glatfelter refused to reimburse WDNR
directly. Because the direct costs were paid out of the Superfund, the EPA was entitled to recover
13
the indirect costs attributable to those payments as well. Accordingly, the government is entitled to
summary judgment on this amount.
F. Declaratory Relief
Lastly, the United States and State of Wisconsin claim they are entitled to declaratory relief
against Glatfelter for future response costs. As noted, the governments’ current cost claims in the
case were tallied up through September 30, 2015, for the United States. For the State, the cost
claims are for the period ending June 30, 2015. Because both governments have incurred and will
continue to incur costs in connection with the cleanup of the site beyond those dates, they seek a
declaration that Glatfelter is jointly and severally liable for future costs as well. The governments
base their request on Section 113(g) which states: “In any such action described in this subsection,
the court shall enter a declaratory judgment on liability for response costs or damages that will be
binding on any subsequent action or actions to recover further response costs or damages.” 42
U.S.C. § 9613(g)(2).
Glatfelter opposes the governments’ request for declaratory relief on the ground that the
statute limits the requirement for declaratory relief to an “initial action.” Glatfelter contends that this
is not an initial action since the government filed a previous action against it in 2003, United States
v. P.H. Glatfelter Company, et al., No. 2:03-cv-949-LA. (E.D. Wis.), which was ultimately resolved
with a consent decree. For these reasons, Glatfelter contends declaratory relief is neither required
nor called for.
I do not read Section 113(g)(2) as narrowly as Glatfelter does. In my view, the phrase “any
such action” is not limited to initial actions, but applies to any CERCLA action for recovery of costs.
Even if Glatfelter’s reading of the statute were correct, this would simply mean that declaratory relief
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was not mandatory, not that it was prohibited. Here, I conclude that declaratory relief is appropriate.
“The structure of the subsection [113(g)(2)] indicates that the intent of Congress in including the
sentence was to avoid the necessity of relitigating liability questions. It provides for the declaratory
judgment as a way to manage the litigation in an efficient manner.” United States v. Navistar Intern.
Transp. Corp., 152 F.3d 702, 709 (7th Cir. 1998). Here, there is no doubt that the Plaintiffs will
continue to incur response costs in the future. Glatfelter’s liability has already been determined by
the court, and the Plaintiffs should not be forced to incur further costs and delay in attempting to
collect future costs. Unlike the other defendants, Glatfelter has not entered into a settlement
agreement with the Plaintiffs for the current Site. Under these circumstances, I conclude that the
Plaintiffs’ request for declaratory relief should be granted.
G. Conclusion
For the reasons set forth above, the United States’ motion for partial summary judgment
(ECF No. 1125) is granted in part and denied in part. The State of Wisconsin’s motion for summary
judgment on its claim for declaratory relief (ECF No. 1134) is granted. Glatfelter’s motion for partial
summary judgment (ECF No. 1141) is granted in part and denied in part, and Glatfelter’s motion for
reconsideration (ECF No. 1171) is granted. The clerk is directed to set the matter on the court’s
calendar for a telephone conference with the United States and Glatfelter to address further
scheduling.
SO ORDERED at Green Bay, Wisconsin this 5th day of February, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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