Rethinking Successor Liability Under CERCLA

The PCB contamination in the Lower Fox River in Wisconsin continues to spawn novel Superfund decisions. The latest is US v. NCR, in which Judge Greisbach of the Eastern District of Wisconsin reversed his initial ruling, made less than six months ago, that the United States could not establish successor liability under CERCLA against Appleton Papers, which had bought assets from the alleged polluting party – NCR Corp – and assumed NCR's liabilities. As Judge Greisbach explained in his earlier ruling, there can be no successor liability where the seller of assets remains a viable CERCLA defendant, since the purpose of successor liability is to prevent "paper transactions" that deny the public access to a solvent party to respond to claims. Whatever contract rights NCR might have against Appleton, the court initally held that they did not extend to the United States.