U.S. v. Akzo Coatings of America, Inc.

• Decision Date: 05 December 1991
• Docket Number: 89-2137,Nos. 89-2092,s. 89-2092
• Parties: , 114 A.L.R.Fed. 653, 22 Envtl. L. Rep. 20,405 UNITED STATES of America, Plaintiff-Appellee, and State of Michigan: Frank J. Kelley, Attorney General, Intervening Plaintiff-Appellant, Cross-Appellee, v. AKZO COATINGS OF AMERICA, INC., et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1409

949 F.2d 1409

35 ERC 1113, 114 A.L.R.Fed. 653, 22

Envtl. L. Rep. 20,405

UNITED STATES of America, Plaintiff-Appellee, and State of Michigan: Frank J. Kelley, Attorney General, Intervening Plaintiff-Appellant, Cross-Appellee, v. AKZO COATINGS OF AMERICA, INC., et al.,

Defendants-Appellees, Cross-Appellants.

Nos. 89-2092, 89-2137.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 1, 1990.

Decided Dec. 5, 1991.

Geneva S. Halliday, Asst. U.S. Atty. (briefed), Detroit, Mich., J. Carol Williams (argued), U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for the U.S.

Jeremy M. Firestone (briefed), Robert P. Reichel, Asst. Atty. Gen. (argued and briefed), Stewart H. Freeman, Office of the Atty. Gen., Tort Defense Div., Lansing, Mich., for State of Mich.

James F. Allen, Squire, Sanders & Dempsey, Columbus, Ohio, J.K. MacKendree Day, Chicago, Ill., for Akzo Coatings of America, Inc. Michael Grice, Detroit, Mich., Keith J. Lerminiaux (argued), Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, Mich., for Chrysler Motors Corp.

Robert A. Emmett, Reed, Smith, Shaw & McClay, Washington, D.C., John A. Kruse, Harvey, Kruse, Westen & Milan, Detroit, Mich., for Detrex Corp.

David Matthews, Cincinnati, Ohio, for Fabricon Automotive Products.

Frank S. Galgan, Troy, Mich., for Federal Screw Works.

Mark D. Edie, Dearborn, Mich., for Ford Motor Co.

David L. Tripp, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for General Motors Corp.

Melinda R. Martinson, Hoechst Celanese Corp., Sommerville, N.J., for Hoechst Celanese Corp.

Donald S. Strait (briefed), Rebecca E. Todd, Natural Resources Defense Council, Inc., New York City, for Natural Resources Defense Council, amicus curiae.

Karen Florini, Environmental Defense Fund, Inc., Washington, D.C., for Environmental Defense Fund, amicus curiae.

A. Blakeman Early, Washington, D.C., for The Sierra Club, amicus curiae.

Mark J. Rudolph, William J. Selinsky, Provizer, Eisenberg, Lichtenstein & Pearlman, Southfield, Mich., for Michigan Indus. Finishes.

Thomas W.B. Porter, David L. Tripp, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for RPM, Inc.

Thomas P. Wilczak, Barbara H. Anderson, David L. Maurer, Pepper, Hamilton & Scheetz, Detroit, Mich., for TRW, Inc. and Uniroyal, Inc.

Before JONES, Circuit Judge, ENGEL and WELLFORD, ^* Senior Circuit Judges.

ENGEL, Senior Circuit Judge.

This is an appeal by the State of Michigan from the entry of a consent decree between the United States Environmental Protection Agency ("EPA") and twelve defendants ¹ pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. § 9601 et seq. The consent decree would require the defendants, or potentially responsible parties ("PRPs"), to engage in remedial work to clean up a hazardous waste site in Rose Township, Oakland County, Michigan ("Rose Site"). The proposed remedial plan at the Rose Site calls for the excavation and incineration of surface soils contaminated with polychlorinated biphenyls ("PCBs"), lead, arsenic and other toxic materials and the flushing of the subsurface soils contaminated with a variety of volatile and semi-volatile organic compounds.

The state challenges the legality of the remedial action, and seeks to prevent entry of the consent decree. The Natural Resources Defense Council, the Environmental Defense Fund and the Sierra Club have filed a brief as amici curiae supportive of the state's position. The majority of the state's and amici's objections to the decree focus on the effectiveness of soil flushing at the Rose Site, where layers of clay are interspersed among beds of sand and silt. The PRPs cross appeal the district court's determination that the decree must comply with Michigan's groundwater anti-degradation law.

I. STATUTORY OVERVIEW

By the late 1970s, Congress concluded that existing cleanup programs were inadequate to the task of taking care of literally thousands of sites across the country posing a serious threat to public health and the environment. Consequently, in 1980, Congress enacted CERCLA, also known as "Superfund," to ensure prompt and efficient cleanup of hazardous waste sites and to place the costs of those cleanups on the PRPs. See S.Rep. No. 848, 96th Cong., 2d Sess. 98, reprinted in, 1 Cong. Research Serv., 97th Cong., 2d Sess., A Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (Superfund), at 405 (1980).

Throughout the 1980s, the Superfund hazardous waste cleanup program enjoyed centerstage prominence in environmental law. Nevertheless, the early years of CERCLA were difficult. CERCLA was a hastily-assembled bill which contained a number of technical flaws due to Congress' limited understanding of the hazardous waste problem and its effects on the environment. See Grad, A Legislative History of the Comprehensive Environmental Response, Compensation and Liability ("Superfund") Act of 1980, 8 Colum.J.Envtl.L. 1, 2, 34 (1982). Both Congress and EPA, for example, believed in the late 1970s that a site could be adequately cleaned up by "scraping a few inches of soil off the ground." H.R.Rep. No. 253, 99th Cong., 2d Sess., pt. 1, at 54 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2836. Congress also grossly underestimated the number of sites requiring cleanup and the monies necessary to remedy the problem. Compare id. with H.R.Rep. No. 1016, 96th Cong., 2d Sess., pt. 1, at 18-20 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 6119, 6120-23. EPA, as the delegatee of the President's authority under CERCLA, 42 U.S.C. § 9615, was criticized for the slow pace of cleanups, for failing to provide remedies that would protect public health and the environment, and for alleged "sweetheart" deals that reduced cleanup costs for industry at public expense. As a result, in 1986 Congress passed SARA, which reauthorized and amended CERCLA in several important ways. Congress sought to better define cleanup standards, to expand resources available to EPA for investigations and cleanups, to clarify EPA's authority under Superfund law, and to expand and clarify the states' role in any remedial action undertaken, or ordered, by EPA.

CERCLA applies "primarily to the cleanup of leaking inactive or abandoned sites and to emergency responses to spills." F. Anderson, D. Mandelker & A. Tarlock, Environmental Protection Law and Policy 568 (1984). The Act directs EPA to develop a National Priorities List ("NPL") for response priority purposes. 42 U.S.C. § 9605(a). After a site is placed on the NPL, a Remedial Investigation and Feasibility Study ("RI/FS") is performed to define the nature and extent of the threat posed by the release and to evaluate proposed remedies. 42 U.S.C. §§ 9604, 9622; 40 C.F.R. § 300.68(d). Once EPA determines under CERCLA that a response action is needed at a particular hazardous waste site, it must publish a proposed remedial action plan ("RAP") and provide an opportunity for comment. 42 U.S.C. § 9617. EPA then issues a Record of Decision ("ROD") setting forth the remedy selected for the site, including remedial technologies and cleanup standards. 42 U.S.C. § 9617.

In implementing its RAP, EPA may pursue one of three possible courses of action. See generally Koppers Indus., Inc. v. EPA, 902 F.2d 756, 757 n. 1 (9th Cir.1990) (discussing the various options). EPA may undertake a response measure on its own, which may include removal and/or remedial action, ² and then sue PRPs it can find for reimbursement. 42 U.S.C. §§ 9604, 9607. In the interim, or in the event it cannot locate any PRPs or they cannot be made to pay the cleanup costs, the government-initiated cleanup may be financed by the "Superfund," 42 U.S.C. § 9611, a trust fund derived from general federal revenues and an excise tax on specified chemicals. See 42 U.S.C. § 9631. Secondly, EPA may, independent of fund-financed response actions issue an administrative order directing PRPs to implement removal or remedial action. 42 U.S.C. § 9606. Alternatively, EPA may apply to the district court for an injunction to compel PRPs to clean up or abate an actual or threatened release of hazardous substances from a facility. Id. As a third option, EPA may enter into an agreement with PRPs to perform a response action, 42 U.S.C. § 9622. Such an agreement is at issue here.

The federal legislative scheme and its history are persuasive that Congress did not intend to leave the cleanup under CERCLA solely in the hands of the federal government. CERCLA, as amended by SARA, provides a substantial and meaningful role for the individual states in the selection and development of remedial actions to be taken within their jurisdictions. In this case for example, pursuant to 42 U.S.C. § 9621(f) the State of Michigan had a reasonable opportunity to comment on the RI/FS, the RAP proposed in the amended ROD, and other technical data related to the implementation of the proposed remedy. The state was also entitled to and did participate in the settlement negotiations that led to the decree at issue. Id. Further, CERCLA is designed to accommodate more stringent "applicable or relevant and appropriate requirements" ("ARARs"), i.e. environmental standards of the state in which a site is located. 42 U.S.C. § 9621(d). Once a consent decree is proposed by EPA, see id. § 9622(a), the state can challenge it if EPA has proposed implementation of a remedy for which the federal agency has waived a valid and more stringent state requirement. Id. § 9621(d)(4), (f)(2)(B). The state may also enforce a decree to the extent the remedial action fails to comply with any state environmental requirements which have not been waived by EPA. Id. § 9621(e).

If no PRPs can be located, or if they are insolvent, a state or political subdivision may enter...