October 26, 2015 Practice Points

Wisconsin District Court Reconsiders CERCLA Divisibility Decision

The motion comes on the heels of the court's May 15, 2015, decision that NCR had successfully established its defense that the PCB contamination in the Fox River was divisible.

By Ted A. Warpinski – October 26, 2015

In the continuing litigation over the cleanup of PCB contamination in the Fox River arising out of the manufacture and use of carbonless copy paper, Judge Griesbach of the Eastern District of Wisconsin issued a decision on October 19, 2015, granting the United States' reconsideration motion, which came on the heels of the court's May 15, 2015, decision that NCR, the manufacturer of the carbonless paper, had successfully established its defense that the PCB contamination in the Fox River was divisible. The May 15, 2015, decision followed remand by the 7th Circuit Court of Appeals, which reversed the district court's earlier decision that the harm was not capable of apportionment. United States v. P.H. Glatfelter Co., 768 F. 3d 662 (7th Cir. 2014). Upon reconsideration, Judge Griesbach concluded that the expert evidence relied on by NCR was not sufficiently reliable.

Ted A. Warpinski is with Friebert, Finerty & St. John., S.C. in Milwaukee, Wisconsin.


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