U.S. v. Meyer

Decision Date26 August 1999
Docket NumberNo. 1:97-CV-526.,1:97-CV-526.
Citation120 F.Supp.2d 635
PartiesUNITED STATES of America, Plaintiff, v. Robert W. MEYER, Jr., Defendant.
CourtU.S. District Court — Western District of Michigan

Kurt N. Lindland, W. Francesca Ferguson, Asst. U.S. Attorney, U.S. Attorney's Office, Grand Rapids, MI, Elliot M. Rockler, Bruce S. Gelber, Randall M. Stone, U.S. Department of Justice Environment & Natural Resources Division, Washington, DC, for Plaintiff.

John D. Dunn, Dean Sean Schindler, Warner Norcross & Judd, LLP, Grand Rapids, MI, Richard J. Quist, Grand Rapids, MI, T. Michael Doyle, Doyle Group Attorneys, PC, Lansing, MI, Richard J. Quist, Richard J. Quist Law Office, Lowell, MI, for Defendant.

OPINION

ENSLEN, Chief Judge.

In this action under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., the United States seeks to recover its response costs for containment and remediation actions at a contaminated site in Cadillac, Michigan. Both the United States and Defendant Robert W. Meyer, Jr. have filed motions for summary judgment. After considering the issues, the Court will grant the United States' Motion for Partial Summary Judgment and deny Meyer's motion.

FACTS

This case involves a Superfund site located in Cadillac, Michigan. The property in question ("the Property") was owned by R.W. Meyer, Inc. at all times relevant to this litigation. Robert W. Meyer, Jr. was an officer and shareholder of R.W. Meyer, Inc., a family-owned business, between 1964 and 1982. He was also an employee of a second family business, R.W. Meyer Construction Company. R.W. Meyer, Inc. intended to develop the Property as a mini-industrial park. To that end and to service an existing tenant, R.W. Meyer Construction Company built a private sewer line along the perimeter of the property ("the perimeter sewer line"), which connected with the municipal sewer system. Meyer supervised and assisted with the construction of the perimeter sewer line. Because the grade at the site did not allow complete drainage of the perimeter sewer line to the municipal sewer, some of the waste water in the perimeter sewer line routinely leaked into the ground through joints loosely sealed with Oakum, a tar substance. Meyer was aware that this would occur.

In the early 1970s, the Cadillac Chamber of Commerce approached Meyer regarding leasing a portion of the Property to Northernaire Plating Company ("Northernaire"), an electroplating business. Meyer, on behalf of R.W. Meyer, Inc., negotiated a lease with Northernaire. Under the lease, R.W. Meyer, Inc. agreed to construct a building on the Property for Northernaire's use and to provide the water, sewer, plumbing and heating for the building. R.W. Meyer, Inc. contracted with Meyer Construction to perform this task.1 Meyer was an employee, shareholder and member of the Board of Directors for Meyer Construction Company and supervised the construction of the Northernaire building and a sewer line connecting sinks and a bathroom within the building ("the eastern sewer line") to the perimeter sewer line. In addition, floor drains were installed in the building, which drained directly into the ground, and, at some later point, a second sewer line ("the northern sewer line") was extended from the area around the floor drains to the perimeter sewer line. Meyer denies installing either of these drainage systems, although he admits that the floor drains were in place when he poured the concrete floor in the Northernaire building.

Northernaire used the floor drains and the northern sewer line to dispose of waste water from the electroplating process. The United States asserts that Northernaire told Meyer it intended to dispose of rinse water through the floor drains and into the sewer; Meyer states that Northernaire promised to dispose of all industrial wastes offsite. Throughout the period of the lease, Meyer maintained and repaired the eastern and perimeter sewer lines and, at some point, built a manhole at the intersection of the eastern sewer line and the perimeter sewer line to facilitate these services. At the request of Donald Rennie, the Supervisor of the City of Cadillac's Wastewater Treatment Plant, Meyer installed a sampling manhole on the perimeter sewer line. Meyer was also the primary contact for Northernaire and visited the site approximately six times throughout the course of the lease.

In 1975 or 1976, the contaminant levels in the effluent from the Northernaire facility became unacceptably high. Rennie informed Meyer of the violations no later than 1978. Later that year, the City of Cadillac barred Northernaire from using the municipal sewer system and plugged the connection between the Northernaire building and the municipal sewer. By 1981, Northernaire was out of business. In 1982, the Michigan Department of Environmental Quality ("MDEQ") began investigating the Property and, in 1983, the United States Environmental Protection Agency ("USEPA") joined the investigation. MDEQ found elevated levels of cyanide, lead, nickel, chromium, copper and zinc in the soil. These hazardous materials are commonly associated with the electroplating industry. USEPA found elevated levels of chromium and cadmium in the soil surrounding the northern sewer line and in sediment in the sewer manholes and elevated levels of hexavalent chromium in the groundwater under the Property.

In 1983, USEPA placed the Property on the National Priorities List and took various removal and clean up actions in response to the contamination on the Property. Subsequently, the United States filed a cost recovery action against various parties, including R.W. Meyer, Inc. Judgment was eventually entered against R.W. Meyer, Inc. The United States then filed a second suit which named Meyer individually among the defendants. The other defendants to this suit entered into a Consent Decree with USEPA on September 4, 1998. The United States and Meyer have filed cross-motions for summary judgment on liability.

STANDARD OF REVIEW

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) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). 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) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

DISCUSSION

To demonstrate Meyer's liability under CERCLA, the United States must show that there has been a release or threatened release of a hazardous substance from a facility which caused the United States to incur response costs and that Meyer meets the definition of a potentially responsible party ("PRP"). Kalamazoo River Study Group v. Rockwell Int'l Corp., 171 F.3d 1065, 1068 (6th Cir.1999). The United States asserts that hazardous substances were released from the sewer lines on the Property, which constitute a facility separate from the Northernaire plant, and that Meyer qualifies as a PRP because he was the former operator of the sewer lines.

CERCLA defines both facility and release broadly. A facility is defined, in part, as "any site or area where a hazardous substance has been deposited, stored, disposed of or placed, or otherwise come to be located...." 42 U.S.C. § 9601(9). Courts have interpreted this language to mean that "facility" includes "every conceivable place where hazardous substances come to be located." Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1151 (1st Cir.1989). Because hazardous substances may come to be located in several discrete locations in a given case, there may be several "facilities" related to a single hazardous waste discharge or disposal. Brookfield-North Riverside Water Commission v. Martin Oil Marketing, Ltd., No. 90 C 5884, 1992 WL 63274, *5 (N.D.Ill. March 12, 1992). The undisputed facts show that, between 1972 and 1978, Northernaire discharged waste waters containing hazardous substances into at least one of the sewer lines exiting its building and that those hazardous substances were deposited in the adjoining sewer lines. Accordingly, the sewer lines, collectively and individually, qualify as a CERCLA "facility."

A release is defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment ...." 42 U.S.C. § 9607(22). Sampling conducted by and for USEPA and MDEQ showed contaminated soils along both the eastern and northern sewer lines and in the vicinity of the floor drains and elevated chromium levels in sewer sediments. In addition, effluent sampling conducted in the perimeter sewer line, which was not properly sealed to prevent leaks, recorded elevated levels of chromium and other hazardous materials. Taken together, these facts demonstrate a release from the northern and...

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