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Friday, September 26, 2014

Ind. Decisions - 7th Circuit non-Indiana cases yesterday about panhandling, PCB contamination

In Norton v. City of Springfield, Ill. (CD Ill.), a 20-page, 2-1 opinion, Judge Easterbrook writes:

The City of Springfield has an ordinance (§131.06 of the Municipal Code) that prohibits panhandling in its “downtown historic district”—less than 2% of the City’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings. The ordinance defines panhandling as an oral request for an immediate donation of money. Signs requesting money are allowed; so are oral pleas to send money later. Springfield evidently views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some persons (especially at night or when no one else is nearby) may find threatening. Plaintiffs have received citations for violating this ordinance and allege that they will continue panhandling but fear liability; this gives them standing to contest the ordinance’s constitutional validity. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014). * * *

The disagreement within the Court in McCullen about how to distinguish a content-based from a content-neutral law (four Justices thought that law to have been contentbased)— and the conflict among the circuits about panhandling ordinances—shows that it is difficult to be confident about how the line between subject-matter (usually allowed) and content-based (usually forbidden) distinctions is drawn. We do not profess certainty about our conclusion that the ordinance is content-neutral. But this was Justice Kennedy’s understanding in Lee. Evaluated by the standard for time, place, and manner restrictions Springfield’s ordinance is within the power of state and local government. AFFIRMED

MANION, Circuit Judge, dissenting. [beginning on p. 9]

Today the court holds that a panhandler who asks a passerby for money in the downtown historic district of the City of Springfield commits a crime and may face criminal prosecution for this simple request. This conclusion is alien to our First Amendment jurisprudence. Accordingly, I do not join the opinion of the court because the City of Springfield’s panhandling ordinance is a content-based regulation of speech, subject to strict scrutiny. By concluding that the ordinance is content-neutral, the court misapplies the Supreme Court’s content-based regulation jurisprudence. Consequently, I respectfully dissent.

In NCR Corp. v. Whiting Paper (ED Wis.), a 57-page opinion involving many parties, Chief Judge Wood's opinion begins and ends:
The invention of carbonless copy pa-per by NCR Corporation in the mid-1950s solved a small problem and created a large one. Though it alleviated the messy side effects of carbon paper for those who wanted copies in the pre-photocopy era, over the next quarter-century it became clear that the cost of this convenience was large-scale environmental contamination. That is because, until the early 1970s, the substance coating the paper includ-ed polychlorinated biphenyls (PCBs), a highly toxic pollutant. In the course of producing the carbonless paper, large quantities of PCBs were dumped into the Lower Fox River in Wisconsin, the site of the paper’s production. (References to the River in this opinion mean the Lower Fox, unless the context requires otherwise.) Recyclers poured yet more PCBs into the River. In time, the problem attracted the attention of the federal government, which, invoking the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (popularly known as the Superfund), eventually ordered the responsible parties to clean up the mess. See 42 U.S.C. § 9601 et seq. This case requires us to decide who should foot the considerable bill.

Once the Environmental Protection Agency (EPA) identi-fies the site of an environmental hazard that requires reme-diation under CERCLA, the statute’s financial responsibility rules are triggered. CERCLA imposes a “pay-first, split-the-bill-later” regime. Any individual persons or corporations meeting certain statutory criteria can be required to pay for the cleanup. Anyone who paid can then recover contribution from other responsible parties in accordance with that enti-ty’s equitable share of the costs.

NCR was the exclusive manufacturer and seller of the emulsion that gave treated paper its “carbonless-copy” char-acter during what the parties call the Production Period (1954 to 1971). That emulsion, unfortunately, used Aroclor 1242 as a solvent, and Aroclor 1242 is a PCB. Given its role in the pollution, NCR has thus far picked up the lion’s share of the cleanup tab for the River site. In this action it seeks contribution from several other paper mills along the river. Those firms were in the recycling business; they bought NCR’s leftover scraps of carbonless copy paper, washed the harmful chemicals off into the River, and recycled the pulp to make new paper. Several ancillary questions and counter-claims were raised along with NCR’s contribution claim, and we will address each in turn. The main event, though, relates to the equitable allocation of costs.

The district court, after holding a first phase of discovery on the question of when each party became aware that the primary chemical ingredient of carbonless copy paper was harmful, held that NCR was not entitled to any equitable contribution from the paper mills. Worse than that, from NCR’s vantage point, the court held that the mills had meri-torious counterclaims for cost recovery from NCR. NCR ap-peals that decision, and the defendant recyclers cross-appeal a handful of matters decided against them. Before addressing these matters, we begin with some background about the cleanup effort. * * *

X. Conclusion. We REVERSE the district court’s judgment with regard to Appvion’s ability to bring suit under CERCLA § 107(a). We VACATE the decision to hold NCR responsible for all of the response costs at operable units 2 through 5 in contribution. We AFFIRM the following decisions: that NCR may proceed only under CERCLA § 113(f); that NCR is not liable as an arranger; that Glatfelter’s insurance settlement may not be offset against NCR’s contribution share; that NCR can be required to contribute for natural resource damages; that Glat-felter’s counterclaim based on the discharges at Portage should be dismissed; and that the defendants’ state-law counterclaims are preempted. This case is REMANDED for proceedings consistent with this opinion.

In a related case today, U.S. v. NCR Corp. (ED Wis.), a 38-page pinion, Judge Tinder begins:
Today we issue two decisions related to the cleanup of the Lower Fox River and Green Bay Superfund Site in northeastern Wisconsin. This decision addresses a claim brought by the United States to enforce a 2007 unilateral administrative order issued by the Environmental Protection Agency (EPA) under § 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9606. EPA’s 2007 order directs several potentially responsible parties (PRPs) to clean up the portion of the Site downstream of Little Lake Butte des Morts.

Posted by Marcia Oddi on September 26, 2014 11:10 AM
Posted to Ind. (7th Cir.) Decisions