Organic Chemical Site Prp Group v. Total Petroleum
| Decision Date | 12 July 1999 |
| Docket Number | No. 5:97-CV-168.,5:97-CV-168. |
| Citation | 58 F.Supp.2d 755 |
| Parties | ORGANIC CHEMICAL SITE PRP GROUP, an unincorporated Voluntary Association located in Michigan, Plaintiff, v. TOTAL PETROLEUM INCORPORATED, a Michigan Corporation, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
John M. Barkett, Coll Davidson Smith Salter & Barkett, Miami, FL, arbitrator.
In this action, Plaintiff Organic Chemical Site PRP Group ("the PRP Group" or "the Group") seeks to establish that Defendant Total Petroleum Incorporated ("Total") is legally liable under federal and state law for all or a portion of the costs of remediating a Superfund-listed property located in Grandville, Michigan. The matter is now before the Court on Organic's motion for partial summary judgment, Total's motions for summary judgment and for partial summary judgment and Organic's motion to strike Total's reply briefs for its summary judgment and partial summary judgment motions.
This case involves a twenty-acre parcel of industrial property in Grandville, Michigan ("the Site"), which has been declared a Superfund site by the Environmental Protection Agency ("EPA"). A five-acre portion of the Site ("the OCI Site") is currently owned by Organic Chemicals, Incorporated ("OCI"), a member of the PRP Group. The OCI Site has been used at various times as a petroleum refinery, petroleum storage facility and chemical plant. Between 1941 and 1955, the OCI Site was owned by Mid-West Refineries and was used first as a petroleum refinery and, after 1945, as a petroleum transport and storage facility. In 1955, Leonard Refineries, Incorporated, the predecessor in interest to Total, acquired the assets of Mid-West Refineries, including the OCI Site, and continued to use the OCI Site for petroleum storage. In 1964, the OCI Site was sold to Cutler Oil Company. Two years later, the OCI Site was reacquired by McClanahan Refineries, Incorporated, a direct subsidiary of Leonard Refineries. In 1968, McClanahan Refineries entered into a land sale contract with Spartan Chemical Company for the sale of the OCI Site. The contract was completed in 1979 and legal title to the property transferred at that time. OCI, a Spartan Chemicals subsidiary, operated a solvent reclamation and chemical manufacturing facility on the property between 1968 and 1980.
In September 1983, the EPA found that the groundwater under the entire twenty-acre tract was contaminated with organic solvents and placed the Site on the National Priorities List created by the Comprehensive Environmental Response and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. In 1991, OCI and many of its customers formed the PRP Group to respond to EPA actions regarding the Site. Total participated in the PRP Group's meetings until some time in 1992, but did not contribute financially to the Group. In January 1992, the EPA issued a Unilateral Administrative Order ("UAO"), ordering certain identified potentially responsible parties ("PRPs"), including OCI and many of its customers, to take specific clean up action at the Site. Since then, the PRP Group has undertaken various remediation activities to halt the migration of contaminated groundwater from the Site. The PRP Group estimates that it has spent approximately $1,000,000 to comply with the UAO issued by the EPA for the Site and certain de minimis members of the PRP Group have deposited another $1,457,375 into a trust fund to pay for additional remediation at the Site and to compensate the EPA for its prior remediation expenses. Total has not contributed to this effort.
On July 11, 1997, the PRP Group filed its complaint in this Court, alleging that Total owned or operated the OCI Site when releases of hazardous materials occurred and is jointly and severally liable for and/or liable for contribution towards the expenses incurred by the PRP Group in remediating the Site. The PRP Group brings its claims under CERCLA; the Solid Waste Disposal Act ("SWDA"), as amended by the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901 et seq.; Michigan's Natural Resources and Environmental Protection Act ("NREPA"), M.C.L. §§ 324.101 et seq.; and Michigan common law.
Both parties have filed motions for summary judgment or partial summary judgment. Total seeks partial summary judgment on the PRP Group's CERCLA claims because they are inappropriately framed or premature, as well as summary judgment on its liability under CERCLA, RCRA and NREPA. The PRP Group, in turn, seeks partial summary judgment on Total's liability under CERCLA, RCRA and NREPA. In addition, the PRP Group has filed a motion to strike the reply briefs that Total filed in support of its motions for summary judgment and partial summary judgment.
The PRP Group argues that, based on the date its responses to Total's Motions for Summary Judgment and Partial Summary Judgment were initially submitted to the Court, Total filed its reply briefs three days late and that these briefs should be struck as a sanction for this untimeliness. Although its pleadings were rejected for failure to comply with technical or procedural provisions of the local rules, the Group argues that, under Fed. R.Civ.P. 5(e), pleadings not rejected for substantive reasons must be considered filed on the date they were initially presented. Total responds that its replies were timely, based on the date that the PRP Group's corrected pleadings were accepted for filing. Even if Total's reply briefs were technically late, the PRP Group has not shown bad faith on Total's part, prejudice from the delay or any other justification for imposing sanctions. The Court will not participate in the parties' bickering and declines to strike Total's reply briefs.
A court may grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." City Management Corp. v. U.S. Chemical Co., Inc., 43 F.3d 244, 250 (6th Cir.1994). The court must view the facts presented in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and draw all reasonable inferences in the nonmovant's favor, Rakoczy v. Traveler's Insurance Co., 959 F.Supp. 777, 781 (E.D.Mich.1997). A party seeking summary judgment must specify the basis upon which judgment should be granted and identify that portion of the record which demonstrates the absence of a genuine issue of material fact. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.1994). If this burden is met, the non-moving party must provide facts, supported by evidence in the record, "upon which a reasonable jury could find there to be a genuine fact issue for trial." Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 205 (6th Cir.1995).
Total argues that summary judgment should be granted against the PRP Group on Counts I, III and VII of its claim and on its request for attorneys fees and costs. Total argues that PRPs are only entitled to contribution under CERCLA and may not impose joint and several liability on other PRPs, as requested in Count I of the complaint; that the contribution claims under CERCLA and Michigan law (Counts III and VII) are premature; and that the PRP Group cannot recover the attorneys fees included in its request for relief.
The Sixth Circuit has recently determined that PRPs cannot bring cost recovery actions under CERCLA to impose joint and several liability on other PRPs, but are limited to bringing actions for contribution. Centerior Service Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 349 (6th Cir.1998). Although this rule was announced after the PRP Group filed its complaint, the decision must be applied retroactively. In re Federated Department Stores, 44 F.3d 1310, 1317 (6th Cir. 1995). Accordingly, summary judgment must be granted to Total on the PRP Group's claim for joint and several liability under 42 U.S.C. § 9607.1
Total next argues that a contribution claim under either CERCLA or Michigan common law is premature, since the PRP Group has not established the full amount of its response costs or demonstrated that it has been or will be forced to pay more than its share of these costs. In its CERCLA contribution claim (Count III), the PRP Group requests contribution toward actually incurred response costs and a declaration of Total's liability for that portion of future response costs properly allocable to Total. The PRP Group may certainly seek contribution for costs already incurred. See, e.g., Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 694-95 (9th Cir.1988); Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 893 (9th Cir.1986). In addition, where future response costs are likely to be incurred, a declaratory judgment on proportional liability is an appropriate remedy, even if the exact amount of future costs is unknown. Kelley v. E.I. DuPont de Nemours and Co., 17 F.3d 836, 845 (6th Cir.1994). Because soil remediation has not yet begun on the OCI Site, the PRP Group is certain to incur future response costs. Accordingly, declaratory judgment regarding Total's CERCLA liability is appropriate.
Total seeks summary judgment on the PRP Group's claim for contribution under Michigan's contribution statute, M.C.L. § 600.2925a, and Michigan common law on the same grounds....
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