U.S. v. R.W. Meyer, Inc.

Decision Date20 November 1989
Docket NumberNo. 88-2074,88-2074
Parties, 58 USLW 2333, 20 Envtl. L. Rep. 20,319 UNITED STATES of America, Plaintiff-Appellee, v. R.W. MEYER, INC., Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Thomas J. Gezon, Asst. U.S. Atty., Office of the U.S. Atty., Grand Rapids, Mich., Jacques B. Gelin, Vicki B. Plaut, Sarah P. Robinson (argued), U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for U.S.

Jon D. VanderPloeg (argued), Smith, Haughey, Rice & Roegge, Grand Rapids, Mich., for R.W. Meyer, Inc.

Before GUY, BOGGS and NORRIS, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Defendant, R.W. Meyer, Inc. (Meyer), appeals from a district court order granting summary judgment for plaintiff, the United States (hereinafter referred to as the Environmental Protection Agency (EPA) or the government), in this action arising under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C. Sec. 9601, et seq. Meyer claims that summary judgment was improper for several reasons. First, it claims that, as a matter of law, the government's indirect costs are not recoverable under CERCLA. Next, it contends that the district court erred in applying retroactively CERCLA's amendments authorizing the award of prejudgment interest. Meyer also claims that the district court erred in finding the defendants jointly and severally liable under CERCLA. Finally, Meyer argues that summary judgment was improper because numerous issues of material fact surrounded the government's claimed direct costs of removal, indirect costs, prejudgment interest, and the issue whether the government's actions were consistent with the National Contingency Plan (NCP), as required under CERCLA. Having determined that the district court's resolution of this matter was correct, we affirm.

The facts underlying this case, as found by the district court, indicate that Meyer owns some property (the property) in a mixed residential, commercial, and industrial setting in Cadillac, Michigan. From 1972 until mid-1981, Meyer leased this property to Northernaire Electroplating Company (Northernaire) to operate an electroplating business. Willard S. Garwood was the president and sole shareholder of Northernaire from 1975 until mid-1981. In the course of its business, Northernaire utilized highly corrosive and caustic substances including cyanide, zinc, hexavalent chromium, cadmium, and chromic acid. In March 1983, officials from the EPA and the Michigan Department of Natural Resources (MDNR) examined the property. Their examination was prompted by earlier reports of MDNR officials indicating that the building had been locked and abandoned and that a child had received chemical burns from playing around discarded drums of electroplating waste that were left outside the building. State tests on samples of the soil, sludge, and drum contents disclosed the presence of significant amounts of caustic and corrosive materials. During their examination of the site, EPA and MDNR officials observed drums and tanks housing cyanide littered among disarray inside the facility. Based on their observations outside of the building, 1 the officials determined that Northernaire had discharged its electroplating waste into a "catch" basin and that the waste had seeped into the ground from the bottom of the basin. The waste then entered a pipe that drained into a sewer line that discharged into the sewage treatment plant for the city of Cadillac.

Approximately June 28, 1983, EPA officials advised Meyer, Northernaire, and Garwood of their intent to engage in an immediate removal action on the property. Although the EPA advised the defendants that they could conduct the removal action themselves, the defendants declined to do so. Consequently, the EPA, aided by contractors, conducted the removal action from July 5 until August 3, 1983. 2

After Meyer, Northernaire, and Garwood failed to respond to an August 13, 1984, EPA demand letter seeking payment for the costs of the removal action, the government filed a complaint against them in federal court seeking reimbursement, pursuant to CERCLA. On June 3, 1986, the government filed a motion for partial summary judgment on the issue of the defendants' liability. Following a hearing, the court granted this motion, finding the defendants jointly and severally liable for the government's response costs. United States v. Northernaire Plating Co., 670 F.Supp. 742 (W.D.Mich.1987). The government then filed a motion for summary judgment on the issue of costs. The government sought $269,811.25 in response costs in addition to prejudgment interest on that amount. The $269,811.25 included $52,978.50 in indirect costs, 3 costs paid to contractors, EPA direct payroll and travel expenses, and $35,473.28 in Department of Justice enforcement costs. This motion also was granted with the exception of $993 incurred for a title search 4 and with the proviso that the parties submit further affidavits regarding the appropriate amount of prejudgment interest. United States v. Northernaire Plating Co., 685 F.Supp. 1410 (W.D.Mich.1988). After the parties stipulated to $74,004.97 as the amount of accumulated prejudgment interest, 5 the court ordered the defendants to pay that amount to the government. On September 2, 1988, the court issued a final judgment on the government's claim. Only Meyer has appealed from that order.

I.

This case comes before us as an appeal from a summary judgment ruling. Our review of such judgments is governed by the principles set forth in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), in which the Supreme Court stated:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Id. at 322-23, 106 S.Ct. at 2552 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)).

The bulk of Meyer's claims concern the extent of its liability under CERCLA for the government's response action. We shall consider these claims first and begin by examining the applicable statutory authority and language.

CERCLA, 42 U.S.C. Sec. 9601, et. seq., was enacted in December 1980 "to initiate and establish a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites." H.R.Rep. No. 1016(I), 96th Cong., 2d Sess. 22, reprinted in 1980 U.S. CODE CONG. & ADMIN. NEWS 6119, 6125. In Walls v. Waste Resources Corp., 823 F.2d 977 (6th Cir.1987), we noted that CERCLA was intended " 'primarily to facilitate the prompt cleanup of hazardous waste sites by placing the ultimate financial responsibility for cleanup on those responsible for hazardous wastes.' " Id. at 981 (citation omitted). 6 CERCLA was reauthorized and amended in 1986 by SARA, Pub.L. 99-499, 100 Stat. 1613 (1986). CERCLA, when originally enacted, established the Hazardous Substance Response Trust Fund, 42 U.S.C. Sec. 9631, to be utilized in connection with the cleanup of releases of hazardous substances into the environment. Section 9631 was repealed by SARA provisions establishing the Hazardous Substance Superfund (Superfund), 26 U.S.C. Sec. 9507. Among other things, the Superfund finances the government's response to actual or threatened releases of hazardous materials. The Superfund's funding sources include general revenue appropriations, certain environmental taxes, monies recovered under CERCLA on behalf of the Superfund, and CERCLA-authorized penalties and punitive damages.

Section 9604(a) of CERCLA authorizes the President of the United States to respond with "remedial" or other "removal" action against any threatened or actual release of any hazardous substance that may pose an imminent and substantial public health threat. 7 Essentially, Congress has authorized the government to utilize Superfund money to take direct response actions that are consistent with the NCP 8 and to recover all response costs from all persons responsible for the release of a hazardous substance. 42 U.S.C. Sec. 9607(a). The recovered funds are used to replenish the Superfund. Section 9607(a) provides, in pertinent part:

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section--

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for--

(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not...

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