The Honorable David R. Herndon, Chief Judge of the United 

States District Court for the Southern District of Illinois,

sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2480

UNITED STATES OF AMERICA, et al.,

Plaintiffs-Appellees,

v.

GEORGE A. WHITING PAPER CO., et al.,

Defendants-Appellees.

APPEAL OF:

APPLETON PAPERS INC. and NCR CORPORATION,

Intervenors.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 09-C-692—William C. Griesbach, Judge.

ARGUED JANUARY 12, 2011—DECIDED MAY 4, 2011

Before KANNE and TINDER, Circuit Judges, and

HERNDON, District Judge.


2 No. 10-2480

KANNE, Circuit Judge. In 2009, the United States and

the State of Wisconsin (“the Governments”) filed suit

in federal district court against eleven of the potentially

responsible parties (“PRPs”) in an environmental

cleanup, seeking response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA). Shortly

thereafter, the Governments filed notice of a de minimis

consent decree pursuant to CERCLA § 122(g). Eventually,

the Governments moved for settlement. Appleton Papers

Inc. and NCR Corporation intervened. The district

court granted the settlement motion over the intervenors’ opposition. Later, the Governments moved for

a de minimis settlement with a twelfth defendant, and the

district court granted this motion. Appleton and NCR

appealed the grant of both settlement motions. We affirm.

I. BACKGROUND

The Fox River in Wisconsin is heavily contaminated

with Polychlorinated biphenyls (“PCBs”). Appleton and

NCR are responsible for much of these PCBs. They contributed significant amounts of Aroclor 1242, the most

prevalent PCB in Fox River. The river also contains

other PCBs, including Aroclor 1254 and Aroclor 1260.

Appleton, NCR, and a few other PRPs are currently

paying to clean up Fox River in compliance with a 2007

Environmental Protection Agency order.

Appleton and NCR are seeking contribution, in a separate suit, from many other PRPs. These include the

twelve PRPs subject to the consent decrees in this suit:
No. 10-2480 3

Section 104(e) requests are a tool by which the federal govern1

ment can obtain information about the creation, storage, use,

(continued...)

Neenah Foundry Company; Green Bay Metropolitan

Sewerage District; the City of De Pere; Procter & Gamble

Paper Products Company; Union Pacific Railroad Company; Green Bay Packaging, Incorporated; Heart of the

Valley Metropolitan Sewerage District; Lafarge Corporation; Leicht Transfer and Storage Company; Wisconsin

Public Service Corporation; International Paper Company;

and George A. Whiting Paper Company (the “de minimis

defendants”).

In 2009, the Governments filed suit against the de

minimis defendants under CERCLA §§ 106 and 107. See

42 U.S.C. §§ 9606, 9607. The Governments then filed two

separate consent decrees—one for the City of De Pere,

the other for the remaining de minimis defendants.

De Pere agreed to pay $210,000 to satisfy its liability.

The others agreed to pay a combined total of $1,875,000.

The Governments estimated that the total cleanup cost

would be, accounting for uncertainty, $1.5 billion. They

also estimated that each of the de minimis defendants

had discharged no more than 100 kilograms of PCBs

and that, in total, 230,000 kilograms of PCBs had been

discharged into the Fox River. The total discharge

estimate is a conservative one, based on a low-end estimate

of Aroclor 1242, not total PCBs. The Governments based

their individual contribution estimates on the de minimis

defendants’ responses to CERCLA § 104(e) information

requests (“§ 104(e) requests”), on discovery responses

1
4 No. 10-2480

(...continued) 1

disposal, and release of hazardous substances and pollutants.

42 U.S.C. § 9604(e)(2).

from Appleton and NCR’s contribution suit, and on

statements by the de minimis defendants certifying

that they had turned over all information related to

their use of PCBs.

The Department of Justice filed notice of the consent

decrees in the Federal Register and solicited public comment. Appleton and NCR objected to both settlements, arguing that the settlements underestimated the

de minimis defendants’ contributions. Appleton and NCR

based their objections on studies suggesting that the

Governments had underestimated the amount of Aroclor

1254 and 1260 in the Fox River. These studies also provided direct evidence of PCB use by some de minimis

defendants. The Governments agreed with NCR on one

point: they recognized that Green Bay Metro Sewerage

may have discharged more than 100 kilograms of PCBs.

Appleton and NCR claimed Green Bay Metro Sewerage

had discharged up to 324 kilograms. The Governments

made an even more cautious estimate of 480 kilograms,

and Green Bay Metro agreed to a corresponding payment of $325,000. The remaining de minimis defendants’

payments remained the same.

After the notice and comment process, the Governments

moved for settlement in the district court. Appleton and

NCR intervened and opposed the motions for settlement. The district court approved both settlement
No. 10-2480 5

decrees and granted the motions for settlement. Appleton

and NCR then appealed.

II. ANALYSIS

In reviewing the consent decrees, we are constrained

by a double dose of deference. See United States v.

Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir. 1990). First,

the trial court must defer to the expertise of the agency

and to the federal policy encouraging settlement. In re

Tutu Water Wells CERCLA Litigation, 326 F.3d 201, 207

(3d Cir. 2003). Thus, the district court must approve a

consent decree if it is reasonable, consistent with

CERCLA’s goals, and substantively and procedurally

fair. Id. We, in turn, defer to the district court’s decision—

reviewing only for an abuse of discretion. Cannons

Eng’g, 899 F.2d at 84.

A. No Rational Basis

The district court concluded the consent decrees were

substantively fair. Appleton and NCR argue that this

conclusion has no rational basis in the record. A consent

decree is substantively fair if its terms are based on comparative fault. Tutu Wells, 326 F.3d at 207; Cannons

Eng’g, 899 F.2d at 87. The calculation of comparative

fault “should be upheld unless it is arbitrary, capricious,

and devoid of a rational basis.” Cannons Eng’g, 899 F.2d

at 87 (“[W]hat constitutes the best measure of comparative fault . . . should be left largely to the EPA’s expertise.”).
6 No. 10-2480

Union Pacific provided certified responses to relevant § 104(e) 2

requests that had been served on other parties.

Rarely does an appellate court conclude the district

court had no factual basis to approve a consent decree.

Appleton and NCR can point to only one such holding. In

United States v. Montrose Chem. Corp., the Ninth Circuit

reversed the approval of a consent decree because the

record included no information—not even an unsupported estimate—about the total cost of cleanup or the

settling parties’ comparative fault. 50 F.3d 741, 747 (9th

Cir. 1995). We need not decide whether an unsupported

estimate would be a sufficient factual basis to affirm a

consent decree—the Governments’ estimate here has

adequate support in the record.

According to Appleton and NCR, the only bases for

the de minimis defendants’ comparative fault are the

Governments’ unsupported conclusions. In reality, the

record includes information about each of the de minimis

defendants’ discharges of PCBs. Whiting Paper, Green

Bay Metro Sewerage, Green Bay Packaging, Heart of the

Valley, International Paper, Procter & Gamble, and Union

Pacific all responded to § 104(e) requests. The de minimis 2

defendants that did not respond to § 104(e) requests

provided certified statements about their use of PCBs

and about any potential discharges. The record also

included deposition transcripts and written discovery

responses produced in related litigation. Finally, the

record included information drawn from the public

comment process.
No. 10-2480 7

Contrary to Appleton and NCR’s argument, these

sources are not devoid of content. In fact, Appleton

and NCR used the information from Green Bay Metro

Sewerage’s § 104(e) responses to demonstrate that Green

Bay Metro Sewerage’s discharges exceeded the Governments’ original estimate. Given the amount of relevant

information in the record, we find that the record

provides a rational basis on which the district court could

conclude the consent decrees were substantively fair.

B. Consideration of non-1242 Aroclors

Appleton and NCR next argue that the consent decrees

are not substantively fair because the estimates of the

de minimis defendants’ comparative fault do not account

for non-1242 Aroclors. This argument rests on a false

premise. In truth, the estimates of the individual

de minimis defendants’ comparative fault account for

discharges of all PCBs—not just Aroclor 1242. According

to Appleton and NCR, the Governments relied on

surveys of PCB pollution—which focus on Aroclor

1242—to derive individual estimates. But the Governments actually relied on § 104(e) responses and other

direct information about the de minimis defendants’

discharges. These sources cover discharges of all PCBs.

The Governments did consider only Aroclor 1242 in

their estimate of the total amount of PCBs discharged

into the Fox River. But Appleton and NCR wisely do not

contest this choice: including non-1242 Aroclors in this

estimate would have only decreased the de minimis defendants’ comparative fault.
8 No. 10-2480

Appleton and NCR’s only argument, then, is that the

evidence it has presented about the presence of non-1242

Aroclors shows that the consent decrees lack a rational

basis. We reiterate that a district court should defer to

the Governments’ expertise in weighing ambiguous and

conflicting evidence of substantive fairness. Cannons Eng’g,

899 F.2d at 88. And we will only disturb the district

court’s decision if Appleton and NCR can show that the

court ignored a material factor or made “a serious

mistake in weighing” the relevant factors. Id. at 84.

Appleton and NCR have not met this heavy burden.

They point to studies suggesting that Aroclors 1254 and

1260 are more toxic than Aroclor 1242. This, they argue,

shows the consent decrees lack rational basis because

the non-1242 Aroclors do not weigh more heavily in the

decrees’ comparative fault calculations. But the Governments point to evidence suggesting that Aroclor 1242 is

just as toxic as Aroclors 1254 and 1260. The district court

considered all the relevant evidence and decided the

Governments’ approach was rational. We are poorly

suited to evaluate the merits of the conflicting positions.

See Kalamazoo River Study Grp. v. Rockwell Int’l Corp., 274

F.3d 1043, 1051 (6th Cir. 2001) (upholding district court’s

decision to defer to the EPA’s conclusion that Aroclors

1242 and 1254 are equally toxic). The district court

did not abuse its discretion by deeming the Governments’ toxicity calculations reasonable.

Appleton and NCR also point to evidence suggesting

the Governments have underestimated the amount of non1242 Aroclors discharged into Fox River. Even if we
No. 10-2480 9

were to disregard the Governments’ evidence of the

amount of non-1242 Aroclors in Fox River, Appleton and

NCR’s evidence would not demonstrate a lack of substantive fairness. Appleton and NCR cannot show that

the de minimis defendants—rather than any of the numerous other PRPs—are responsible for the purportedly

uncounted non-1242 Aroclors.

C. Unresolved Issue of Divisibility

We note that Appleton and NCR appeal only the

district court’s approval of the consent decrees at issue

here. Any divisibility decision made—or not yet made—in

related litigation is beyond the scope of this appeal. The

only relevant issue, then, is whether the district court

abused its discretion by affirming the consent decrees

before deciding whether the de minimis defendants’

liability was divisible from that of other PRPs.

By its nature, a consent decree eliminates many

possible outcomes that would have been better for one

side or the other. See United States v. Armour & Co., 402 U.S.

673, 681 (1971) (“[I]n exchange for the saving of cost

and elimination of risk, the parties each give up something they might have won had they proceeded with

the litigation.”). Appleton and NCR have not shown

that the settlement amounts do not account for the risk of

divisibility. Under Appleton and NCR’s theory, parties

could never negotiate away the risk of which side would

prevail in a divisibility dispute, even when—as here—the

cost of resolving that dispute might exceed the total

settlement amount.
10 No. 10-2480

Neither the Governments nor the de minimis defendants

have an interest in disputing divisibility here. Appleton

and NCR are free to dispute the divisibility of their

own liability in the appropriate suit. Accordingly, the

district court did not abuse its discretion by approving

the consent decrees before a divisibility determination.

D. Insufficient Discovery

Appleton and NCR claim more discovery was needed

before the district court could approve the settlement

agreement. They do not make clear when the discovery

should have taken place or who should have been involved. Appleton and NCR did not move for discovery

in this case, so they cannot appeal the denial of any

such motion. To the extent they argue that the Governments and the de minimis defendants should have

engaged in discovery in order to establish a factual

basis for the consent decree, we have already addressed

their concerns. To the extent Appleton and NCR challenge discovery limitations in separate litigation, their

argument is beyond the scope of this appeal.

E. Improper Consideration of Equitable Factors

Appleton and NCR argue that the district court, in its

approval of the consent decrees, considered equitable

factors in violation of CERCLA § 122(g). By not making

this argument until oral argument, they forfeited it. See

Ceta v. Mukasey, 535 F.3d 639, 649 n.16 (7th Cir. 2008). 
No. 10-2480 11

Even if not forfeited, Appleton and NCR’s argument

has no merit. Section 122(g) puts forth criteria for identifying de minimis defendants. It does not limit the factors

a district court can consider in determining whether a

settlement decree is fair, reasonable, and consistent

with CERCLA. See 42 U.S.C. § 9622(g). Moreover, while

the district court’s order does mention comparative

liability, an equitable factor, its decision rests on its appraisal of comparative fault—an appropriate and necessary factor for consideration. See Tutu Water Wells, 326

F.3d at 207; Cannons Eng’g, 899 F.2d at 87.

III. CONCLUSION

Because the district court did not abuse its discretion

in approving the consent decrees between the Governments and the de minimis defendants, we AFFIRM its

decisions.

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