Kelley v. EI DuPont de Nemours
| Decision Date | 09 March 1992 |
| Docket Number | No. 90-CV-72028-DT.,90-CV-72028-DT. |
| Parties | Frank J. KELLEY, ex rel. STATE OF MICHIGAN and Michigan Department of Natural Resources, Plaintiffs, v. E.I. duPONT de NEMOURS and COMPANY, Browning-Ferris Industries of Ohio and Michigan, Inc., and Andrew Stevens, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Albert M. Leffler, Jeremy M. Firestone, Lansing, Mich., for plaintiffs.
Steven C. Kohl, Muskegon, Mich., Gary R. Cooper, Toledo, Ohio, William G. Beck, Kansas City, Mo., for defendants.
CORRECTED OPINION AND ORDER REGARDING (1) THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON THE PARTIES' FEBRUARY 1991 MOTIONS FOR PARTIAL SUMMARY JUDGMENT, (2) PLAINTIFFS' NOVEMBER 7, 1991 MOTION FOR PARTIAL SUMMARY JUDGMENT, AND (3) DEFENDANTS' OCTOBER 1991 MOTIONS TO DISMISS COUNTS III AND IV
On July 12, 1990, Plaintiffs Frank J. Kelley, ex rel., State of Michigan and State of Michigan Department of Natural Resources (referred to herein as the "Plaintiffs" or "the State"), initiated this action by filing a two-count complaint under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., against Defendants E.I. duPont de Nemours and Company ("duPont"), Browning-Ferris Industries of Ohio and Michigan, Inc. ("BFIOM"), and Andrew Stevens. Plaintiffs seek to recover more that $1,000,000 of response1 costs incurred by the State in connection with the removal of hazardous substances and contaminated soil from the Stevens Landfill Site in Monroe County, Michigan (the "Site"), and the future costs that will be incurred by the State in connection with the continued monitoring of the Site Count I of Plaintiffs' Complaint. Plaintiffs further seek in Count II of their Complaint a declaratory judgment pursuant to Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2) and the Declaratory Judgment Act, 28 U.S.C. § 2201, that Defendants are strictly, and jointly and severally liable under Section 107(a) of CERCLA for future costs of responding to releases or threatened releases of hazardous substances at the Stevens Landfill.
In February 1991, the State and Defendants duPont and BFIOM filed cross-motions for partial summary judgment. The motions placed at issue the availability to the Defendants of the statute of limitations and laches defenses with respect to Plaintiffs' CERCLA cost recovery claims, and the appropriateness of affording the State a declaratory judgment regarding the Defendants' liability for future costs.2 These motions were referred to Magistrate Judge Virginia M. Morgan for Report and Recommendation ("R & R"). The Magistrate Judge heard oral arguments on the motions on April 8, 1991. On June 10, 1991, Magistrate Judge Morgan issued her R & R.
In her Report and Recommendation, the Magistrate Judge recommended that the Court find that Plaintiffs' CERCLA claims are governed by the three-year statute of limitations set forth in 42 U.S.C. § 9613(g)(2)(A)3 and that the statute of limitations on Plaintiffs' CERCLA claims for recovery of response costs began to run on July 15, 1987, the date as of which the last of the drums of hazardous substances and associated contaminated soil were removed from the Stevens Landfill Site. Accordingly, Judge Morgan further recommended that the Court find that, because this action was commenced on July 12, 1990, i.e., before the expiration of the three year statute of limitations, Plaintiffs' CERCLA claims for recovery of costs incurred by the State from the commencement of waste removal from the Site in November of 1985 through July 15, 1987 are not time-barred.
Judge Morgan further recommended that the Court rule in favor of Plaintiffs on their other two partial summary judgment arguments and, accordingly, recommended that the Court (1) determine that the affirmative defense of laches is not available to Defendants in this action, and (2) enter a declaratory judgment in Plaintiffs' favor as to Defendants' liability for future response costs.
All three movants—the State, duPont and BFIOM—timely filed Objections to the Magistrate Judge's Report and Recommendation, and requested that the Court hear oral argument on their Objections.
Then, on July 2, 1991—two and a half weeks after the issuance of the Magistrate Judge's Report and Recommendation, and barely a week after the parties filed their Objections to the R & R—Plaintiffs filed a Motion for Leave to Amend their Complaint to add two counts based upon the 1990 amendments to the Michigan Environmental Response Act ("MERA"), M.C.L. § 299.601 et seq., which took effect the day before, on July 1, 1991.
Leave to amend was granted by this Court on August 9, 1991, and Plaintiffs, accordingly, filed their First Amended Complaint that same date, setting forth their new MERA claims by adding to their original CERCLA complaint claims, two new counts—Counts III and IV.
Plaintiffs' Amended Complaint engendered three more cross-motions for dismissal/partial summary judgment. On October 21, 1991, Defendant duPont moved to dismiss Count III, arguing that the response recovery provision of MERA, M.C.L. § 299.612(3)(a),4 is violative of the Equal Protection Clauses of the United States and Michigan Constitutions. On that same date, Defendant BFIOM filed its own motion to dismiss both Counts III and IV, arguing as Defendant duPont did in its motion, that the M.C.L. § 299.612(3)(a) is violative of the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and of Article I, § 2 of the Michigan Constitution, and further arguing that that provision of MERA violates the due process clause of the Michigan Constitution (Article I, § 17) and violates the separation of powers doctrine.
Plaintiff filed a Brief in Response to Defendants' Motions and subsequently, filed its own Motion for Partial Summary Judgment on November 7, 1991, asking the Court to hold that MERA Section 12(3)(a) is constitutional, or in the alternative, to sever the "except" clause from Section 12(3)(a) of MERA, which is the subclause of Section 12(3)(a) placed in issue by the Defendants' Motions.
The Court has reviewed and considered the Magistrate Judge's June 10, 1991 Report and Recommendation and the parties' Objections thereto, and has also reviewed and considered the parties' October/November 1991 Motions and Briefs for and against dismissal of Plaintiffs' MERA claims. And, having further heard the oral arguments of the parties' attorneys at the hearing held on February 20, 1992, the Court is now prepared to rule on these matters. This Opinion and Order sets forth that ruling.
As noted above, this lawsuit involves the State of Michigan's claims that the Defendants duPont and BFIOM are liable for all response costs incurred by the State in connection with the release or threatened release of hazardous substances at the Stevens Landfill Site in Monroe County, Michigan. The Defendants are duPont, which disposed of waste at the Site from approximately 1955 to 1965, and BFIOM, the successor-in-interest of Community Sanitation Services, Inc., the transportation service which transported duPont's waste materials from duPont's Toledo, Ohio Factory and Finishes Division facility to the Site during that time period. Andrew Stevens was the owner and operator of the Landfill at the time of duPont's and BFIOM's disposal of the waste at the Site.
The duPont waste materials dumped in the Stevens Landfill included solvents, paint waste, paint thinner, lacquer and sludge. These materials were generally contained in 55 gallon drums, some of which were open and some of which were closed. In addition, some liquid waste was hauled from duPont's facility to the Landfill in a tanker truck, and this liquid was emptied out over the Landfill area.
The Stevens Landfill is a 34-acre Site located in Bedford Township, in Monroe County. From the time of the cessation of open dumping on the Site in 1965 through the early 1980's, the Site was used by local residents, for recreational activities such as hunting and off-the-road vehicle riding. The Site is close in proximity to a residential area of approximately 5,700 people, and, within a three-quarter mile radius of the Site are two churches, a day care center, three schools, and approximately 50 residences. Many of the residences bordering the Site rely on groundwater as a source of drinking water.
The Landfill was brought to the attention of the Michigan Department of Natural Resources (the "MDNR") in early 1980, when a local resident complained about barrels containing possible hazardous waste located on the Site's surface. There were also allegations made by local residents that both bulked and drummed liquids were buried in disposal pits on the Site. Frequent fires, several of which were reported as self-started and explosive by fire officials, had occurred on the Site.
In response to these citizen reports, the MDNR and the U.S. Environmental Protection Agency (the "EPA") investigated and evaluated the Landfill Site and discovered approximately 1,150 drums at the Site, many of which were leaking, and some of which were in standing water. The drum analysis identified ethylbenzene, naphthalene, and other chemical substances. Pentachlorophenol ("PCP") was also detected in the ground water. These discoveries led the MDNR to conclude that the Stevens Landfill was the second worst site of environmental contamination in the State of Michigan. Accordingly, the MDNR recommended that the State appropriate funds to clean-up the Stevens Landfill Site.
Acting in response to the MDNR's recommendation, on June 27, 1984, the Michigan Legislature appropriated $1.38 million to remove...
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