Kelley v. E.I. DuPont de Nemours and Co.

• Decision Date: 11 April 1994
• Docket Number: Nos. 92-2053,92-2054,s. 92-2053
• Citation: 17 F.3d 836
• Parties: , 62 USLW 2538, 24 Envtl. L. Rep. 20,538 Frank J. KELLEY; State of Michigan; Michigan Department of Natural Resources, Plaintiffs-Appellees, v. E.I. DuPONT DE NEMOURS AND COMPANY (92-2054); Browning-Ferris Industries, Inc. (92-2053), Defendants-Appellants, Andrew Stevens, Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 836

17 F.3d 836

38 ERC 1153, 62 USLW 2538, 24 Envtl.

L. Rep. 20,538

Frank J. KELLEY; State of Michigan; Michigan Department of

Natural Resources, Plaintiffs-Appellees, v. E.I. DuPONT DE NEMOURS AND COMPANY (92-2054);

Browning-Ferris Industries, Inc. (92-2053),

Defendants-Appellants,

Andrew Stevens, Defendant.

Nos. 92-2053, 92-2054.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 1, 1993.

Decided Feb. 23, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied April 11, 1994.

A. Michael Leffler, Jeremy M. Firestone (argued and briefed), Office of Atty. Gen., Environmental Protection Div., Lansing, MI, for plaintiffs-appellees.

Cary Rodman Cooper, Cooper, Straub, Walinski & Cramer, Toledo, OH, William G. Beck (argued and briefed), Patrick J. Gregory, Lathrop & Norquist, Kansas City, MO, Jerry L. Anderson, Drake University Law School, Des Moines, IA, defendants-appellants.

Mark R. Haag (argued), Dept. of Justice, Environment & Natural Resource Div., Catherine M. Flanagan (briefed), U.S. Dept. of Justice, Washington, DC, for amicus curiae, U.S.

Before: KEITH, NELSON, and RYAN, Circuit Judges.

RYAN, Circuit Judge.

The defendants, E.I. DuPont de Nemours and Co. and Browning-Ferris Industries, Inc., appeal the district court's award of summary judgment in favor of the State of Michigan, in the State's action to recover landfill cleanup costs pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, 42 U.S.C. Sec. 9601 et seq. On appeal, the defendants maintain that the State's CERCLA claim relating to physical removal costs is time barred. In addition, the defendants argue that equal protection and due process considerations preclude the State's recovery of these costs under the companion Michigan statute. Finally the defendants claim that the district court lacked jurisdiction to enter a declaratory judgment for the State's future cleanup costs.

We conclude that the State's CERCLA action was timely as to all cleanup activity. Because the State is entitled to full cost recovery under CERCLA, the defendants concede that there is no need to reach the constitutional challenges to the Michigan statute. In addition, we conclude that there was a case or controversy of sufficient immediacy to warrant entry of a declaratory judgment in the State's favor.

I.

Beginning in approximately 1955 and continuing over a ten-year period, defendant E.I. DuPont de Nemours and Co. disposed of large quantities of industrial waste at the Stevens Landfill in Bedford Township, Monroe County, Michigan. This waste, which included solvents, paint waste, paint thinner, lacquer, and sludge, was compartmentalized in open or sealed 55-gallon drums, or was hauled in liquid form and dumped over the 34-acre landfill. Community Sanitation Services, Inc., whose successor-in-interest is defendant Browning-Ferris Industries, transported the waste to the landfill from a DuPont facility in Toledo, Ohio.

There are approximately 5,700 residents in the area, and some 50 homes, as well as churches, schools, and a day care center in immediate proximity to the Stevens Landfill. Many of the residents closest to the landfill rely on groundwater for their domestic needs. After dumping at the landfill ceased in 1965, a number of local residents began using the area for hunting, off-road recreational vehicle riding, and other purposes.

In 1980, a local resident complained to the Michigan Department of Natural Resources that the Stevens site was littered with large barrels, possibly containing contaminated waste. Other residents found drums and bulked waste buried in pits. In addition, the landfill was the site of frequent fires, some explosive, and fire officials reported that many of these fires were self-starting.

Investigating these allegations, the Michigan Department of Natural Resources (MDNR), in conjunction with the U.S. Environmental Protection Agency, discovered the second worst site of environmental contamination in the state. The agencies found in excess of 1,000 drums. Many were leaking. An analysis of the drums' contents revealed ethylbenzene, naphthalene, and a number of other chemicals. A groundwater test detected the presence of pentachlorophenol, or PCP.

On June 27, 1984, pursuant to the Michigan Environmental Response Act, or MERA, the Michigan Legislature appropriated $1.38 million to clean up the Stevens Landfill. It took another year and judicial intervention before MDNR was able to gain access in June 1985. During this time, MDNR interviewed Stevens Landfill site owner Andrew Stevens, who informed MDNR of DuPont's and Community Sanitation's involvement in the dumping.

In October 1985, MDNR contracted with Hazardous Waste Technology Services, Inc., or Haztech, for the physical removal of the surface waste. Funding for this surface removal effort totalled almost half of the $1.38 million previously appropriated. About the same time, MDNR hired NUS Corporation to conduct a range of site evaluation activities, collectively known in the environmental arena as a Remedial Investigation/Feasibility Study, or RI/FS.

NUS began on-site activity in late October 1985 by conducting an overall site inspection, coupled with initial sampling of surface water, well water, and sediment. Soil gas surveying and other geophysical activity, along with ground water sampling followed on the heels of this preliminary activity. By January 1986, a joint team from NUS and MDNR was ready to conduct further geophysical tests to determine subsurface geological conditions.

In the meantime, Haztech began its physical removal efforts in November 1985. On several occasions in December 1985, Haztech conferred with MDNR over how to handle a pond located on the landfill site that contained bluish colored water. Haztech had removed several drums from the pond's surface. Although some drum fragments were visible, Haztech had been unable to discern whether more waste lay under the pond's surface. Moreover, sludge and ice were hampering further removal efforts. MDNR called upon NUS to collect samples of the pond water and surface sludge, but there is no evidence that MDNR, Haztech, and NUS came to any agreement on how to handle the pond. In March 1986, MDNR announced to the public that Haztech had completed physical removal efforts. In total, Haztech had removed 1,150 drums and more than 2,600 cubic yards of contaminated soil.

In April 1986, NUS continued its RI/FS activities by conducting magnetometer and conductivity studies, in attempt to identify those areas where drums or other solid materials might have been buried. Shortly thereafter, NUS installed monitoring wells. Eventually, NUS identified ten sites, including the blue-water pond, that might house solid objects. The contractor excavated and sampled test pits at all sites in January 1987. Results from the tests revealed the presence of solid waste at only the blue-water pond location.

Following completion of the RI/FS draft reports in June 1987, MDNR hired Inland Waters to remove drums and related contamination from the blue-water pond site. Although Inland had worked as a Haztech subcontractor on the original physical removal contract, Inland had been the successful bidder against Haztech for this follow-up effort. Inland completed removal activity on July 15, 1987 by removing four drums and 1,150 cubic yards of contaminated soil, all from the blue-water pond area.

MDNR released the final RI/FS reports in late fall 1987, and, on March 3, 1988, announced that it had selected annual on- and off-site groundwater monitoring as its remedial plan. The agency expected monitoring to continue for 30 years, at an estimated total cost of $273,000. Sums already expended on the cleanup, including the RI/FS, exceeded $1.25 million.

In January 1989, after obtaining a state court order granting the necessary access, MDNR conducted its first annual off-site monitoring effort. Shortly thereafter, MDNR notified DuPont and Browning-Ferris that the State of Michigan considered the two companies liable for all cleanup and remedial costs. On July 12, 1990, the State filed a recovery action pursuant to CERCLA, seeking from DuPont, Browning-Ferris, and Andrew Stevens ¹ full reimbursement of all sums expended and to be expended.

Upon cross-motions for summary judgment, the district court rejected the argument by DuPont and Browning-Ferris that the State's action was untimely as to the surface removal efforts. The defendants had maintained that Haztech's physical removal activity constituted a discrete removal action with its own attendant limitations period. In addition to finding that the State's CERCLA action was timely, the district court entered a declaratory judgment finding the defendants liable for the State's future costs 786 F.Supp. 1268. This appeal followed.

II.

We review the district court's award of summary judgment de novo. Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). The Federal Rules of Civil Procedure require that summary judgment,

be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). In determining whether summary judgment is appropriate, the court must bear in mind that

Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses ... to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate ... prior to trial, that the claims and defenses have no factual basis.

Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Here, the district court, in granting...