Krygoski Const. Co., Inc. v. City of Menominee, 2:04-cv-076.

• Decision Date: 05 May 2006
• Docket Number: No. 2:04-cv-076.,2:04-cv-076.
• Citation: 431 F.Supp.2d 755
• Parties: KRYGOSKI CONSTRUCTION COMPANY, INC., a Michigan Corporation, Plaintiff, v. CITY OF MENOMINEE, a Michigan municipal corporation, and Does 1 through 10, inclusive, Defendants.
• Court: U.S. District Court — Western District of Michigan

Page 755

431 F.Supp.2d 755

KRYGOSKI CONSTRUCTION COMPANY, INC., a Michigan Corporation, Plaintiff, v. CITY OF MENOMINEE, a Michigan municipal corporation, and Does 1 through 10, inclusive, Defendants.

No. 2:04-cv-076.

United States District Court, W.D. Michigan, Northern Division.

May 5, 2006.

Michael J. Palid, Marinette, WI, Stephen Michael Ryan, Stephen M. Ryan PLLC, Bingham Farms, MI, for Plaintiff.

Dean F. Pacific, Daniel P. Lennington, Warner Norcross & Judd LLP, Ronald M. Stella, U.S. Attorney, Grand Rapids, MI, David Plotinsky, U.S. House of Representatives, Office of the General Counsel, Washington, DC, for Defendants.

MEMORANDUM

EDGAR, District Judge.

This is an action for cost recovery under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 ("CERCLA") and the Michigan Natural Resources and Environmental Protection Act, Mich. Comp. Laws §§ 324.20101 et seq. ("NREPA"). Plaintiff Krygoski Construction Company, Inc. ("Krygoski") seeks recovery of its alleged response costs pursuant to Section 107 of CERCLA. 42 U.S.C. § 9607. Plaintiff seeks its costs incurred in testing soil from property owned by the defendant City of Menominee ("Menominee") and for its attorneys' fees and expert fees.

Menominee brings a motion for summary judgment against Krygoski on its CERCLA and NREPA claims. [Court Doc. No. 198].. Krygoski also moves for summary judgment on the issues of liability and recovery. [Court Doc. No. 188]. After reviewing the entire record, the Court concludes that Menominee's motion will be GRANTED. Krygoski's motion will be DENIED.

I. Background

After reviewing the entire record, the Court finds the following relevant, undisputed facts. Menominee owns a 14-acre public park known as Spies Field. [Court Doc. No. 193-3, Ex. A, p. 36]. The park contains one regular-sized baseball field and one smaller baseball field. Id. In 1996 Menominee created a task force to address the overcrowding and heavy use of Spies Field. Menominee first attempted to relocate the park, but in 2002, after running out of viable options, the task force decided to expand and renovate Spies Field. Id. at pp. 35-36. Subsequently, Menominee researched purchasing 2.7 acres of land located directly south of Spies Field (the "Site"). Id. at p. 49. The Site was a wetland covered in dense vegetation that had been unused for the 20 years prior to 2002. Id.

Before Menominee bought the Site, it contracted with STS Consultants, Ltd., a nationally-recognized environmental consulting company with 18 different offices, to conduct a Phase I Environmental Site Assessment of the Site. [Court Doc. No. 193-6, Affidavit of Roger Miller ("Miller Aff.") ¶ 3]. STS has extensive experience conducting Phase I assessments. Id. at ¶ 4. A Phase I assessment consists of an initial investigation of a piece of property to review whether a property is contaminated by hazardous substances. Phase I assessments are often completed prior to purchase. [Court Doc. No. 193-2, Deposition of Chris Austin ("Austin Dep."), pp. 23-24]. STS completed the Phase I assessment in February of 2002 and determined that no "Recognized Environmental Conditions" existed at the Site. Miller Aff., Ex. Menominee purchased the Site in March 2002 and began making plans for the Spies Field expansion and renovation. [Court Doc. No. 193-4, Deposition of Anthony Furton ("Furton Dep."), Ex. 1]. The Site abuts several other commercial sites, including plaintiff Krygoski's property. [Court Doc. No. 193-2, p. 49].

In May of 2003, before Menominee began renovating the Site, Dale Pape Sr., a self-described environmental activist and corporate representative of Krygoski, undertook an inspection of the property. The parties dispute the nature of this inspection. Menominee asserts that it gave Mr. Pape no authority to inspect its property, and Krygoski maintains that as part of Menominee's bidding process for the renovation, potential bidders, including Krygoski, were allowed to inspect the property. However, Krygoski provides no support in the record for its alleged version of the facts.¹ Menominee provides support for its assertions that Mr. Pape had no permission to test soil on the Site and that the bid documents required such permission prior to testing. [Court Doc. No. 193-9, Affidavit of George Cowell ("Cowell Aff."), ¶ 9].

Mr. Pape discovered areas on the Site that he believed contained contaminated substances. In June of 2003, Mr. Pape took samples of soil from the Site and hired an outside testing company to analyze the contents of the soil. The samples revealed elevated levels of lead and chromium. [Court Doc. No. 193-7, Affidavit Of Anthony Furton ("Furton Aff."), ¶ 3; Court Doc. No. 193-2, p. 61]. Menominee learned of Mr. Pape's tests of the Site through the local media. Id. After it learned of the potential contamination, Menominee immediately contacted the Michigan Department of Environmental Quality ("MDEQ") and STS. Id. Both STS and MDEQ agreed to visit the Site the next day to discuss the possible contamination and any cleanup. Id.

On June 20, 2003 the Mayor of Menominee, as well as other city officials met with engineers from STS and a geologist from MDEQ, Chris Austin. Austin Dep., pp. 14-17. The group discovered crushed barrels at the Site that contained a substance that appeared to be yellow paint. Id. STS also collected 12 soil samples and 9 soil borings. [Court Doc. No. 193-2, p. 64].

Mr. Austin recommended that Menominee undertake the following actions: (1) place a fence around the area of estimated contamination; (2) sample areas around the contamination; (3) properly dispose of the contaminated substances; and (4) retrieve additional soil samples from the whole Site. Austin Dep., pp. 34-35; [Court Doc. No. 193-2, pp. 9-10]. Menominee began implementing Mr. Austin's recommendations, and he testified in his deposition that Menominee's officials "did everything right." Austin Dep., p. 34.

On July 11, 2003 Menominee officials again met with Mr. Austin at the Site. An On-Scene Coordinator from the United States Environmental Protection Agency ("EPA"), Ken Rhame, also attended the meeting. Because STS's samples from the June 20th meeting revealed excessive levels of lead and chromium, Menominee assured the EPA and the MDEQ that it would hire a contractor to remove vegetation from the Site and properly dispose of the contaminated waste. The city also indicated that it would continue to retain STS to assist and investigate other areas of potential contamination at the Site. Mr. Rhame indicated that EPA would not have recommended anything beyond what Menominee proposed to do to remediate the Site. Austin Dep., pp. 38-40; [Court Doc. No. 193-2, pp. 20, 31]. Mr. Rhame wrote to Mr. Austin that "it is EPA's feeling that this project is being appropriately addressed by the City of Menominee and is being adequately monitored by the [MDEQ]." [Court Doc. No. 193-2, p. 32].

Menominee hired Onyx Environmental Services ("OES") to undertake the cleanup and proper disposal of the hazardous wastes found at the Site. [Court Doc. No. 193-2, p. 31]. OES filled eight 85-gallon drums with hazardous waste from the Site and properly disposed of the waste. Id. at pp. 31, 49.

STS continued to investigate potential contamination at the Site and took additional soil borings and soil samples. [Court Doc. No. 193-2, p. 64]. After OES removed the barrels of hazardous waste, Menominee conducted a thorough "walkthrough" of the entire Site using several employees to review all areas of the Site. [Court Doc. No. 193-5, Deposition of George Arvid Cowell ("Cowell Dep."), pp. 88-89]. During the walkthrough the city employees discovered various other waste items, including pieces of concrete, a half-full 30-gallon oil drum, a bucket filled with remnants of tar, and various car parts. Id. at pp. 91-100. OES removed the hazardous wastes discovered during the walkthrough. Id. at pp. 105-06.

In August of 2003, Menominee realized that additional contamination existed near the southern boundary of the Site. City Manager Anthony Furton wrote to Mr. Austin regarding the additional contamination. [Court Doc. No. 193-2, p. 33]. He indicated that Menominee had fenced the area off and was conducting testing for lead and chromium of nine samples per each quarter acre. Id. On September 4, 2003 Menominee requested the EPA's assistance in remediating the Site due to Menominee's concerns about its financial ability to undertake a complete remediation. Id. at p. 64, Although Mr. Pape complained to the MDEQ about Menominee's response to the contamination issues at the Site, the Chief of MDEQ's Remediation and Redevelopment Division, informed Mr. Pape that both the MDEQ and the EPA "found the City's approach to be an appropriate response to the property conditions." [Court Doc. No. 193-2, p. 35].

In October 2003 the EPA agreed to undertake a complete environmental assessment of the Site and collect more soil samples and one water sample. [Court Doc. No. 193-2, p. 36]. After testing of the EPA's samples revealed elevated levels of lead and chromium, Mr. Rhame recommended that the EPA fund a complete cleanup of the Site at a cost of $357,360. The EPA approved the request on February 25, 2004. Id. at pp. 64, 37-43. Krygoski contends that it took additional soil and groundwater samples near the Site in October of 2003 that revealed elevated levels of chromium. However, the Court can find no evidence in the record relating to this testing.

During March and April of 2004, the EPA undertook a complete cleanup of the Site. [Court Doc. No. 193-2, pp. 48-50]. Among other activities, the EPA cleared vegetation from the Site; dug investigative trenches to search for oil drums or other hazardous waste containers; collected and tested numerous additional soil and water samples; drained the wetland; removed and disposed of 240 tons of hazardous soil and 230 tons of nonhazardous...