Kalamazoo River Study Group v. Rockwell Intern. Corp., 97-1964

Citation171 F.3d 1065
Decision Date26 March 1999
Docket NumberNo. 97-1964,97-1964
PartiesKALAMAZOO RIVER STUDY GROUP, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORPORATION; Eaton Corporation; Wells Aluminum Corporation; Hercules, Inc.; Menasha Corporation; The Upjohn Company; Rock-Tenn Company, Mill Division, Inc.; and Benteler Industries, Inc., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Alan C. Bennett (briefed), Law, Weathers & Richardson, Grand Rapids, MI; Jerome T. Wolf (argued), James L. Moeller (briefed), J. Bradley Leitch (briefed), Amy E. Bauman (briefed), Sonnenschein Nath & Rosenthal, Kansas City, MO, for Kalamazoo River Study Group.

Joseph C. Basta, Dykema Gossett, Detroit, MI, for Rockwell International Corporation and Eaton Corporation.

Dustin P. Ordway, Dickinson, Wright, Moon, VanDusen & Freeman, Grand Rapids, MI, for Menasha Corporation.

Daniel P. Perk (argued), Joseph M. Ammar (briefed), Miller, Johnson, Snell & Cummiskey, Grand Rapids, MI, for Benteler Industries, Inc.

Before: MERRITT, SILER, and GILMAN, Circuit Judges.

SILER, Circuit Judge.

The Kalamazoo River Study Group ("KRSG"), the plaintiff, appeals the district court's grant of summary judgment in favor of Benteler Industries, Inc. ("Benteler"), the defendant, in this response cost recovery action brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., and the Michigan Natural Resources and Environmental Protection Act ("NREPA"), M.C.L.A. § 324.20101, et seq.

BACKGROUND

In 1990, after nearly 20 years of investigating polychorinated biphenyl (PCB) contamination in the Kalamazoo River, the Michigan Department of Natural Resources ("MDNR") 1 determined that a three-mile portion of Portage Creek from Cork Street to the Kalamazoo River, and a 35-mile portion of the Kalamazoo River from this confluence downstream to the Allegan City Dam (the "Site") were heavily concentrated with PCBs. Consequently, the MDNR listed the Site as an environmental contamination site under the Michigan Environmental Response Act, M.C.L.A §§ 299.601 et seq. (repealed and replaced by NREPA, M.C.L.A. § 324.20101, et. seq.) and the United States Environmental Protection Agency ("EPA") listed the Site on the National Priority List ("NPL") as a Superfund Site pursuant to CERCLA § 105, 42 U.S.C. § 9605. 2 The MDNR and the EPA authorized the MDNR to conduct an Endangerment/Risk Assessment (E/RA) for the Site.

Following the E/RA, MDNR identified three paper mills--HM Holdings, Inc. Benteler is engaged in the manufacture of automotive parts. It purchased the manufacturing facility at issue in this case in 1989. 3 The facility is located about 3200 feet north of the far southeastern boundary of Morrow Lake, which is an impoundment of the Kalamazoo River located upstream from the Site. Located on Benteler's property is a 3200-foot drainage ditch that runs north to south toward Morrow Lake. At the north end of the ditch next to the Benteler parking lot is a headwall with a drain that discharges storm water run-off and floor drainage from the plant into the ditch. 4 This ditch is at the center of the controversy.

Georgia-Pacific Corporation and Simpson Plainwell Paper Company--with facilities located on or near the Kalamazoo River as potentially responsible parties ("PRPs") for the PCB contamination. All three companies entered into an Administrative Order by Consent ("AOC") which required them to perform a Remedial Investigation and Feasibility Study ("RI/FS") at the Site. Subsequently, James River Company, which voluntarily agreed to pay a portion of the RI/FS costs, joined with the other three companies to form an unincorporated association called the Kalamazoo River Study Group ("KRSG").

When Benteler purchased the facility, it contained transformers and capacitors that contained PCBs. In 1989, while Benteler was preparing the facility for use, one of the transformers was damaged and leaked PCBs. In the process of responding to this leak, Benteler discovered PCBs throughout the plant, in the drain lines leading toward the ditch, and in the ditch itself near the headwall. In response, Benteler, with the assistance of environmental consultants, undertook testing and investigating to determine the extent of PCB contamination in the ditch.

In 1993, pursuant to a Remedial Action Work Plan prepared by the environmental consultants and approved by MDNR, Benteler undertook remedial actions to remove PCBs from the ditch, which included the excavation of approximately 800 cubic yards of soil from the first 600 feet of the ditch and the remediation of the storm sewer lines that emptied into the ditch. All remediation activities were completed by October 11, 1993. Further verification samples were taken in 1994 and 1996. On October 16, 1996, the MDNR issued Benteler a clean closure letter.

In 1995, KRSG filed the underlying action against eight corporations, including Benteler, with facilities on or near the Kalamazoo River, alleging that they contributed to the PCB contamination at the Site and should be responsible for some of the cleanup costs. KRSG alleged that Benteler's facility discharged oil-containing wastewater, storm water and cooling water from its plant, through the plant's drainage pipes and into this drainage ditch. The discharged water, according to KRSG, then transported PCB-contaminated soil and sediment from the ditch and released it to Morrow Lake, then to the Kalamazoo River and downstream to the Site. Benteler moved for summary judgment, arguing that KRSG could not prove that Benteler had contributed PCBs to the Site. In its response, KRSG included the affidavit of Dr. Mark Brown who concluded that Benteler had in fact discharged water and PCBs to the Kalamazoo River and thus downstream to the Site. The district court granted summary judgment in favor of Benteler, finding that Dr. Brown's conclusion rested on an unreliable foundation.

STANDARD OF REVIEW

This court reviews the district court's grant of summary judgment de novo. Morris v. Crete Carrier Corp., 105 F.3d 279, 280 (6th Cir.1997). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The initial burden is on the moving party to demonstrate that an essential element of the non-moving party's case is lacking. Id. The burden then shifts to the non-moving party to come forward with specific facts, supported by evidence in the record, upon which a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

This court must review the evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In addition, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of judge. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Schaffer v. A.O. Smith Harvestore Products, Inc., 74 F.3d 722, 727 (6th Cir.1996) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505). Nevertheless, the non-moving party must present more than a mere scintilla of evidence in support of her position; the non-moving party must present evidence on which the jury could reasonably find for the plaintiff. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).

DISCUSSION

The purpose of CERCLA is "to facilitate the prompt cleanup of hazardous waste sites by placing the ultimate financial responsibility for cleanup on those responsible for hazardous wastes." United States v. R.W. Meyer, 889 F.2d 1497, 1500 (6th Cir.1989). In order to establish a prima facie case of CERCLA liability against Benteler, KRSG must establish that: (1) there was a release or threatened release of a hazardous substance; (2) the site of the release or threatened release is a "facility" as that term is defined the statute; (3) the release or threatened release has caused KRSG to incur response costs; and (4) Benteler is among a statutorily-defined group of persons, which includes the owner or operator of an owner or operator of a facility. See CERCLA § 107, 42 U.S.C. § 9607(a). Benteler only challenges KRSG's ability to establish the third element, causation. In a "two-site" case such as this, where hazardous substances are released at one site and allegedly travel to a second site, in order to make out a prima facie case, the plaintiff must establish a causal connection between the defendant's release of hazardous substances and the plaintiff's response costs incurred in cleaning them up. Thomas v. FAG Bearings Corp., 846 F.Supp. 1382, 1387 (W.D.Mo.1994).

Benteler does not deny that there has been PCB contamination in its facility and in the ditch during its ownership of the facility; however, Benteler contends that the conditions of the ditch are such that PCBs from its facility have not and could not have migrated all the way down the ditch to Morrow Lake and into the Kalamazoo River during its ownership of the facility. Benteler has offered a variety of evidence in support of this position.

Benteler's Evidence

Benteler has presented evidence that the PCBs in the ditch were confined to the northern part of the ditch near the headwall. In conjunction with the Remedial Action Work Plan prepared by Benteler's environmental consultants in 1993, the MDNR only required remediation activities in the ditch to a distance of approximately 600 feet from the headwall. MDNR did not require Benteler to remediate the remaining 2600 feet of the ditch because there...

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