Charter Tp. of Oshtemo v. American Cyanamid Co.

• Decision Date: 03 May 1995
• Docket Number: No. 1:92:CV:843.,1:92:CV:843.
• Citation: 910 F. Supp. 332
• Parties: CHARTER TOWNSHIP OF OSHTEMO; City of Kalamazoo; Kalamazoo County; and The Upjohn Company, Plaintiffs, v. AMERICAN CYANAMID COMPANY, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

910 F. Supp. 332

CHARTER TOWNSHIP OF OSHTEMO; City of Kalamazoo; Kalamazoo County; and The Upjohn Company, Plaintiffs, v. AMERICAN CYANAMID COMPANY, et al., Defendants.

No. 1:92:CV:843.

United States District Court, W.D. Michigan.

May 3, 1995.

Richard D. Reed, Reed, Stover & O'Connor, PC, Kalamazoo, MI, for Charter Tp. of Oshtemo.

Robert H. Cinabro, Office of the City Attorney, Kalamazoo, MI, for City of Kalamazoo.

Duane T. Triemstra, Kalamazoo County Board of Commissioners, Kalamazoo, MI, for Kalamazoo County.

Scott S. Brinkmeyer, Marjorie McKenney Dixon, Mika, Meyers, Beckett & Jones, P.L.C., Grand Rapids, MI, Martha J. Koster, Stephen M. Leonard, Lee H. Glickenhaus, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, Boston, MA, for The Upjohn Company.

Thomas W. Daggett, Wildman, Harrold, Allen & Dixon, Chicago, IL, for American Cyanamid Company.

Charles M. Denton, Michael F. Kelly, Varnum, Riddering, Schmidt & Howlett, Grand Rapids, MI, Philip A. Grashoff, Jr., David B. Nelson, Honigman, Miller, Schwartz & Cohn, Detroit, MI, for Arco Industries Corporation.

Paul Theodore Vlachos, Vlachos & Vlachos, PC, Kalamazoo, MI, for Balkema, Inc., et al.

Dustin P. Ordway, John L. Teeples, Dickinson, Wright, Moon, Van Dusen & Freeman, Grand Rapids, MI, for Borden Chemical, Inc., et al.

Todd R. Dickinson, Philip G. Henderson, Tolley, Vandenbosch & Walton, PC, Grand Rapids, MI, for Brunswick Corporation.

Robert A. Soltis, Ford, Kriekard, Domeny & Byrne, PC, Portage, MI, for City of Parchment.

Alan H. Silverman, Silverman, Rodbard & Smith, PC, Kalamazoo, MI, James Shek, Cornell, Dalzell, Fette, Ramey, et al., Kalamazoo, MI, Michael H. Perry, Fraser, Trebilcock, Davis & Foster, PC, Lansing, MI, for City Star Service, Inc.

Mary M. Bittence, Patricia A. Poole, Baker & Hostetler, Cleveland, OH, Cynthia P. Ortega, Cynthia P. Ortega Law Offices, Kalamazoo, MI, for Eaton Corporation.

Steven C. Kohl, Howard & Howard, PC, Bloomfield Hills, MI, for Fabri-Kal Corporation.

John A. Ferroli, Dykema Gossett PLLC, Grand Rapids, MI, James G. Fausone, Dykema Gossett, Detroit, MI, for General Motors Corporation.

Charles M. Denton, George B. Davis, Michael F. Kelly, Varnum, Riddering, Schmidt & Howlett, Grand Rapids, MI, for Hydreco, Inc., et al.

John H. Hess, Hess & Hess, PC, Grand Rapids, MI, Steven P. Means, Michael, Best & Friedrich, Madison, WI, for International Paper.

James R. Nelson, Nelson & Kreuger, PC, Grand Rapids, MI, Brian J. Jordan, Michigan Bell Telephone Co., Detroit, MI, for Michigan Bell Telephone Company.

Gary A. Trepod, Honigman, Miller, Schwartz & Cohn, Lansing, MI, Christopher J. Dunsky, Honigman, Miller, Schwartz & Cohn, Detroit, MI, for Michigan Disposal Service Corporation.

Sharan Lee Levine, Levine & Levine, Kalamazoo, MI, Kathryn Browning Fuller, Beveridge & Diamond, PC, New York City, for Penn Corporation.

Randall S. Schau, Gemrich, Moser, Bowser & Lohrmann, Kalamazoo, MI, for Prab Robots, Inc., et al.

Lynda E. Thomsen, Thomas M. Canny, Bauckham, Sparks, Rolfe & Thomsen, Kalamazoo, MI, for Richland Township.

Steven C. Kohl, Howard & Howard, PC, Bloomfield Hills, MI, William H. Harbeck, Quarles & Brady, Milwaukee, WI, for Simpson Plainwell Paper Company.

David H. Fink, Avery K. Williams, Cooper, Fink & Zausmer, PC, Farmington Hills, MI, for Waste Management of Michigan, Inc.

John R. LaParl, Jr., Smith, LaParl & Mequio, Portage, MI, for Impact Label, Inc.

Joanne R. Robinson, Bloomfield, MI, for Lakeside Refining Company.

Jeffrey Damen Swenarton, Kreis, Enderle, Callander & Hudgins, PC, Kalamazoo, MI, for National Storage.

Peter W. Steketee, Grand Rapids, MI, for Rheem Manufacturing Company.

OPINION

ENSLEN, Chief Judge.

This matter is before the Court on the Joint Defense Group's motion for reconsideration of this Court's Order issued August 19, 1993.¹ On that date, this Court denied defendants' motion to dismiss plaintiffs' claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607 ("section 107").

The claim concerns response costs incurred by plaintiffs relating to releases of hazardous substances at the West KL Avenue Landfill. Plaintiffs, and other potentially responsible parties, had resolved their liability to the government through a consent decree entered in this Court in United States v. Upjohn, Case No. 1:92:CV:659.

The parties in the present case agreed that section 107 defines when a party is subject to liability for response costs. However, defendants maintained that amendments to CERCLA in 1986 (SARA) included section 113(f), which specifically provided a vehicle for liable parties to obtain reimbursement or contribution from other parties that may also be liable. 42 U.S.C. § 9613(f). Unlike a section 107 action, which has been interpreted to provide for joint and several liability where the harm is not shown to be divisible, section 113 provides only for a party to seek contribution from other parties that are liable pursuant to the definition in section 107. (citations omitted).

Certainly, plaintiffs could have brought a contribution action under section 113 against potentially liable parties. The question facing the Court was whether the action by plaintiffs could also be brought under section 107. A direct action under section 107 appears to be permitted by its plain language, as it provides that parties meeting the definition of liable persons "shall be liable for ... (B) any other necessary costs of response incurred by any other person." 42 U.S.C. 9607(a)(4)(B). However, defendants contend that section 113(f) provides a vehicle for a party that is a liable person under section 107 to seek cost recovery from other potentially responsible parties. Defendants argue that section 107 should be interpreted to merely provide the basis for establishing and measuring liability, and section 113 should be found to provide the exclusive CERCLA remedy for parties such as plaintiffs in this case.

The case law available in 1993 when this Court originally decided the issue was sparse; however, this Court noted that it had decided the same issue in 1990 in Kelley v. Thomas Solvent Co., 790 F.Supp. 710 (W.D.Mich.1990). In Thomas Solvent, this Court found that the plain language of the statute and the underlying policy of encouraging prompt and complete response actions supported finding that a direct action under section 107 was available to third party plaintiffs in that case. Id. at 717. In deciding the 1993 motion in the present case, this Court noted three other district court opinions decided since Thomas Solvent that appeared to support this interpretation, but also acknowledged that there was no consensus among the courts. Also, this Court noted that the Sixth Circuit had not addressed the issue.

Finding that Thomas Solvent remained the law of this District and that there was no consensus of other courts for a contrary interpretation, this Court ruled that a section 107 action was available to plaintiffs in the present case. This Court added that it looked forward to a time when the Sixth Circuit would decide this difficult issue. In September 1993, defendants moved for reconsideration of the August 1993 Order, and, in the alternative, requested certification of an interlocutory appeal of the decision to the Sixth Circuit. This Court repeated its view that CERCLA permits plaintiffs to proceed under section 107, but certified the appeal to the Sixth Circuit. Unfortunately, on February 3, 1994, the Court was notified that the Sixth Circuit refused to decide the certified appeal.

DISCUSSION

As recognized by both parties, reconsideration of earlier orders is proper when the controlling law has changed or where the prior decision was clearly erroneous. Shakman v. Democratic Organization of Cook County, 844 F.Supp. 422, 425 (N.D.Ill.1994). Prior rulings are subject to principles of finality and repose, and ordinarily should not be altered, in the absence of changed circumstances or unforeseen issues, unless clearly erroneous. Wyoming v. Oklahoma, 502 U.S. 437, 446, 112 S.Ct. 789, 796, 117 L.Ed.2d 1, 17 (1992).

In the present motion, defendants primarily repeat the arguments made in their original motion and in their motion for reconsideration, both filed in 1993. However, they provide considerable case law since that time to indicate a near consensus, which was lacking in 1993, that a CERCLA section 107 action is not available for plaintiffs that are themselves liable parties, as defined in the section; that is, that such efforts to reapportion costs are properly viewed as suits for contribution, pursuant to section 113 of CERCLA. See cases cited infra, Although it is clear that there has been no change in the controlling law, defendants assert that based upon the consensus of the five circuits to directly address the issue, three of which were issued after the original decision in this case, this Court should find that its original interpretation was clearly erroneous.

The Court has found no circuits to have specifically held that a party liable under section 107 has the option to seek cost recovery under section 107. One important aspect of this issue is that section 107 permits a finding of joint and several liability under many circumstances, while a section 113 contribution action does not permit joint and several liability.

As noted by plaintiffs, although it did not address the present issue directly, the Sixth Circuit has permitted a private party to proceed with a section 107 case. Velsicol Chemical Corp. v. Enenco, Inc., 9 F.3d 524, 530 (6th Cir.1993). However, the issue of whether such a private party is actually restricted to bringing a section 113(f) action for contribution was apparently, and inexplicably, not raised in the case. The plaintiff in Velsicol also brought a separate claim for contribution under section 113(f). Velsicol involved a situation similar to the present case: a company and city that...