Third Time May Be The Charm In The Lower Fox River PCB Superfund Matter

It's always satisfying to find an open-minded judge who is willing to change his decision when he is shown to be wrong, but Judge Greisbach of the Eastern District of Wisconsin may be crossing the line from open-mindedness into a chronic inability to make up his mind. In the past 9 months, Judge Greisbach has issued three separate decisions in US v. NCR on the subject of whether a party, Appleton Papers, Inc., which purchased assets from an alleged polluting party, NCR Corp., can be held to have successor liability under CERCLA with respect to the PCB contamination of the Lower Fox River.

To recount the bidding, Judge Greisbach initially held in July of 2011 that the government could not establish successor liability against a purchaser of assets where the seller of assets, who apparently caused the releases of hazardous substances, remained a viable CERCLA defendant. In December of 2011, Judge Greisbach reversed himself on the dubious basis that none of the CERCLA