Poly-Flex Const., Inc. v. Neyer, Tiseo & Hindo
| Decision Date | 06 October 2008 |
| Docket Number | No. 1:07-cv-1090.,1:07-cv-1090. |
| Citation | 582 F.Supp.2d 892 |
| Parties | POLY-FLEX CONSTRUCTION, INC., a Texas corporation, Plaintiff, v. NEYER, TISEO & HINDO, LTD., d/b/a NTH Consultants, a Michigan corporation, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Kristin Beals Bellar, David D. Grande-Cassell, Clark, Hill, PLC, Lansing, MI, for Plaintiff.
Stephen P. Ormond, Kupelian, Ormond & Magy, PC, Southfield, MI, for Defendant.
The defendant moved to dismiss the complaint for failure to state a claim. The motion was fully briefed, and the court heard oral argument on September 4, 2008. Pursuant to the court's September 5, 2008 order, the parties submitted supplemental briefs as to whether PFC's breach-of-contract and contractual-indemnification claims (counts one and three) are time-barred. See Doc. Nos. 29 and 30, filed Sept. 15, 2008. For the reasons that follow, the court holds that all four claims are time-barred. Accordingly, the court will grant defendant's motion and dismiss the complaint.
Central Sanitary Landfill, Inc., owns and operates a Type II Municipal Solid Waste Landfill located in Pierson in Montcalm County, Michigan ("Landfill"), and is not a party to this action. Apparently in January 2002, Landfill hired plaintiff Poly-Flex Construction, Inc. ("PFC") to construct a leak-detection system for the portion of the site known as the Cell VI-A Disposal Area, which is 3.8 acres. See Amended Complaint filed March 25, 2008 ("Comp"), Ex C at 3, Sec. 2.0 ("Background"). Cell VI-A was connected to Cell VI-B, which was already constructed and licensed to receive waste, and on the north it bordered Cells V-A and V-B. Id. The contracted work included "construction of a leak detection system as a secondary collection system for landfill leachate, and the connection of the leak detection system to the secondary liner and leak detection system shared by other cells at the Project." See Plaintiff PFC's Brief in Opposition to the Motion to Dismiss the Amended Complaint ("P's Opp") at 1. PFC did the work that same year. See Comp ¶¶ 5 & 11.
On February 6, 2002 Landfill issued a request for proposal ("RFP") "seeking a cost proposal from qualified firms to provide certification services for the construction of [the] Cell VI-A Disposal Area." See Comp, Ex A at (RFP Letter from Landfill Environmental Manager Debbie Nurmi to NTH Project Manager Blaine Litteral) at 1. Landfill was required to have such services performed to comply with Part 115 of the Michigan Natural Resources and Environmental Protection Act, MICH. COMP. LAWS § 324.11501 et seq. On February 20, 2002, NTH submitted a proposed "agreement for professional engineering services" relating to Cell VI-A, with a proposed price of $31,800, Comp ¶ 7 and Ex A at 2 (Letter from NTH's Litteral to Landfill's Debbie Nurmi) and id. at 3 et seq. (Proposed NTH-Landfill Agreement and attachments), and PFC accepted the offer.
Sometime in early May 2002, NTH issued its Certificate of Acceptance, certifying to Landfill and to the Michigan Department of Environmental Quality ("MDEQ") that the system was built in accordance with certain project specifications, including a construction permit issued by the MDEQ, the CQA Plan, and the Construction Drawings for Cell VI-A. P's Opp at 1-2. NTH's Certificate of Acceptance was provided to the MDEQ as required by MICH. ADMIN. RR. 299.4916 and 299.4921.
On May 9, 2006, the MDEQ issued a Letter of Violation to Landfill. The MDEQ's letter stated, in its entirety:
On April 20, 2006, staff of the Department of Environmental Quality (DEQ) conducted an inspection of the Central Sanitary Landfill solid waste disposal area, located at 21545 Cannonsville Road, Pierson, Michigan. The purpose of this inspection was to evaluate compliance with Part 115, Solid Waste Management, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended, MCL 324.11501 et seq[.], and any administrative rules promulgated pursuant to this act. A copy of the evaluation report generated as a result of our inspection is enclosed for your records and review.
Based upon information obtained and observations made during the inspection, staff of the DEQ has determined that the required leak detection system serving Phase VI-A was improperly constructed and not functioning, and therefore you are in violation of the following requirements of part 115:
R 299.4424 Rule 424(1) states that "A secondary collection system shall be designed to operate as a leak detection system."
R299.4424 Rule 424(2) requires, in pertinent part, that "A secondary collection system shall be capable of detecting, collecting, and removing leaks of hazardous constituents at the earliest practicable time through all areas of the top liner that are likely to be exposed to waste or leachate during the active life and postclosure care period . . . ."
R299.4921 Rule 921(1) requires, in pertinent part, that "The construction quality assurance officer shall certify that a landfill was constructed in accordance with the CQA plan, these rules, and engineering plans approved by the department . . . ."
In order to rectify the above, it will be necessary for you to prepare and submit a plan to correct the installation errors that prevent the leak detection system from functioning as required within 15 days of receipt of this letter of warning. This letter of warning does not preclude nor limit the DEQ's ability to initiate any other enforcement action, under state or federal law, as deemed appropriate.
If you have any questions regarding this notice, please feel free to contact me.
Comp, Ex B (Letter from Terrance A. Hartman, R.S., Environmental Sanitarian, MDEQ Waste & Hazardous Materials Division) at 1-2.
In response to the violation warning letter, NTH and Landfill submitted an Investigation Plan to the MDEQ on May 24, 2006. The Investigation Plan, prepared by NTH, acknowledged,
It appears that the primary composite liner (flexible membrane liner (FML) and geosynthetic clay liner (GCL)) and underlying secondary geocomposite drainage layer in Phase VI-A may not be connected to the respective companion layers in Phase VI-B, at least at the location of the tie-in at the southwest corner of Phase VI-A.
* * *
According to verbal reports and photographs provided by Mr. Paul Wakefield of FTS, the full-time CQA technician, exposing the tie-in between Phase VI-A and VI-B revealed that the liner system at the southwest boundary between these two cells might not have been constructed in accordance with the 2002 construction drawings and specifications.
* * *
To allow the construction of Phase VII-A to proceed, GSE repaired the liner system along the exposed tie-in between Phase VI-A and VI-B. This included connecting the secondary geocomposite drainage layer and primary FML between the two cells. This repair was documented by FTS and will be included in CAP [Correction Action Plan].
Comp Ex. C at 2 and 4. NTH proposed a series of measures designed to investigate the condition of the project work, see Comp Ex C at 6-9.
On May 29, 2002, NTH issued its final Certification Report. See Defendant's Motion to Dismiss the Amended Complaint for Failure to State a Claim ("MTD"), Ex 2 (Affidavit of NTH Chairman Kevin Hoppe, Professional Engineer, dated April 3, 2008 ("Hoppe Aff")) ¶ 2. NTH's Statement of Certification stated, in its entirety,
During the construction of Phase VI A of the Central Sanitary Landfill, NTH Consultants, Ltd. monitored earthwork construction operations and; [sic] the installation of geosynthetic components including: HDPE liners; geosynthetic clay liner; primary and secondary leachate collection systems; and the construction of infrastructure components. Documentation by representations of NTH Consultants, Ltd. of the monitoring activities are presented in this report[.] I, Blaine A. Litteral, a Professional Engineer registered in the State of Michigan, hereby certify that representatives from NTH have monitored the construction activities associated with earthwork construction; the installation of geosynthetic components including: geosynthetic clay liner; HDPE liners, drainage composites, and geotextiles; and primary and secondary leachate collection systems, for Phase VI A of Central Sanitary Landfill, Montcalm County, Pierson, Michigan.
The limits of certification documented by this report are shown on the Construction Record drawing in Appendix C. The Limits of Certification boundaries are as follows: the northern limit is the tie in of the geosynthetic liner system to the existing Phase V A and V B liner system; the western limit is the tie in to the Phase VI B liner system, the eastern limit is the inside edge of the anchor trench for the geosynthetic liner system (near the center of the eastern berm); and the southern limit extends to the inside edge of the anchor trench[.]
To the best of my knowledge and belief, the construction at the aforementioned facility has been completed as documented by this report and the construction activities were completed in a manner that meets the intent of the project plans and specifications included in solid waste construction permit No. 8848.
MTD, Ex 2 (Hoppe Aff), Attachment. NTH did not perform or monitor any work at the Landfill or issue any certification documents under the CQA after May 2002.
On December 20, 2006, PFC and Landfill entered into a three-page purported "Settlement Agreement and Assignment of Claim." See Comp, Ex. D. The settlement stated, in pertinent part,
Landfill and MDEQ subsequently agreed to entry of a Consent Order requiring Landfill, among other things, to pay $21,500.00 to the State of Michigan in settlement of MDEQ's...
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