U.S. v. Township of Brighton

• Decision Date: 25 August 1998
• Docket Number: 96-1992,Nos. 96-1802,s. 96-1802
• Citation: 153 F.3d 307
• Parties: , 29 Envtl. L. Rep. 20,045 UNITED STATES of America, Plaintiff-Appellee (96-1802)/Cross-Appellant (96-1992), v. TOWNSHIP OF BRIGHTON, Michigan, Defendant-Appellant (96-1802)/Cross-Appellee (96-1992), Jack V. Collett, Defendant/Cross-Appellee (96-1992).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 307

153 F.3d 307

47 ERC 1161, 29 Envtl. L. Rep. 20,045

UNITED STATES of America, Plaintiff-Appellee (96-1802)/Cross-Appellant (96-1992), v. TOWNSHIP OF BRIGHTON, Michigan, Defendant-Appellant

(96-1802)/Cross-Appellee (96-1992),

Jack V. Collett, Defendant/Cross-Appellee (96-1992).

Nos. 96-1802, 96-1992.

United States Court of Appeals,

Sixth Circuit.

Argued Dec. 1, 1997.

Decided Aug. 25, 1998.

Robert W. Haviland, Asst. U.S. Attorney, Office of the U.S. Attorney, Flint, MI; Andrew C. Mergen (argued and briefed), U.S. Department of Justice, Land & Natural Resources Division, Washington, DC; Maureen M. Katz, U.S. Department of Justice Environmental Enforcement Section, Washington, DC, for Plaintiff-Appellee/Cross-Appellant.

Edward V. Keelean (briefed), Juliet E. Pressel (argued and briefed), Guy P. Hoadley (briefed), Wise & Marsac, Detroit, Michigan, for Defendant-Appellant/Cross-Appellee.

Michael F. Merritt, Kizer Law Firm, Howell, MI, for Defendant/Cross-Appellee.

John H. Bauckham (briefed), John K. Lohrstorfer (briefed), Bauckham, Sparks, Rolfe & Thomsen, Kalamazoo, Michigan, for Amicus Curiae.

Before: BOGGS and MOORE, Circuit Judges; and DOWD, ^* District Judge.

BOGGS, J., delivered the opinion of the court. MOORE, J. (pp. 322-331), delivered a separate opinion concurring in the result. DOWD, D.J. (pp. 331-335), delivered a separate opinion dissenting in part and concurring in part.

OPINION

BOGGS, Circuit Judge.

Brighton Township, Michigan, appeals from the determination, after a bench trial, that it is liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., for "response costs" incurred by the government in cleaning up a dumpsite used by the township and others. We vacate this finding of liability, and remand for further proceedings. The United States appeals the denial of prejudgment interest on its award. We vacate this denial, and remand for a determination of the proper amount of interest on any award that is made.

I

A

The subject of this case is a plot of land in Brighton Township comprising roughly 15 acres. From 1960 to 1971, the property was owned by Vaughan Collett; since his death in 1971, it has been owned by his son Jack. In 1960, the township contracted with Vaughan Collett to use the site as a dump for town residents, for "waste" but not "garbage" (a distinction that was never defined). The agreement required the dump to "meet specifications of and be under the supervision of the [township's] Board of Appeals." ¹ The township agreed to pay Collett $60 a month in rent and $10 a month for maintenance. Collett was supposed to be responsible for maintaining the facility, and had full salvage rights. Township residents were admitted to the dump free of charge; non-residents could use Collett's property as a dump as well, but they had to make their own fee arrangements with Collett.

The relationship between Brighton Township, Collett, and the dump changed over the years. In 1961, the township clarified that its agreement did not allow commercial or industrial waste, though as with waste from non-residents, Collett could make separate arrangements to accept it. In 1965, the township changed its mind, and decided to let local commercial waste into its dump along with residential waste. In early 1967, the board agreed to pay Collett a substantially higher fee, in exchange for limiting use of the dump to township residents only. Non-residents and industrial customers, who had previously been able to contract separately with Collett, were now excluded from using the facility. This arrangement remained until the township closed the dump in 1973.

The fee paid to Collett rose steadily. In 1963, it increased from $70 to $120, and two years later it grew again to $150. Early in 1967, the fee was raised to $175, and later in the year, when the dump was closed to all but township residents, it was set at $300. That same year, after two special (and unspecified) appropriations totaling $100 were made, the board decided to cease making such supplemental payments unless it had contracted to do so in advance. The monthly fee was raised to $400 in 1969, and $500 in 1970. In 1971, the allotment became $500 a month for rental, with an additional $666.66 a month for maintenance.

Over the years, the Township Board often made significant extra appropriations, for "dump repair" ($320), extra maintenance ($67.50; $552; $500), "additional expenses" ($58), bulldozing ($160; $649; $744), plowing for fire protection ($50), "work" ($870 to a bulldozing company; $213; $500; $500), snow removal ($50; $150; $96 for "trenching and snow removal"; $150 for "snow removal and small dozing"), and "dozers and crane work" ($350). ² The annual appropriation made for 1968, $4200 ($300 times 12 months, plus $600), suggests that the township expected in advance that it would have to make supplemental payments. In 1969, this anticipatory excess was increased to $1400, for a total appropriation of $5000. The amount in 1969 proved to be deficient by $1561 (due in part to a hike in the monthly fee), and so a total of $12,000 was allocated for 1970. Despite the fact that less that $10,000 of this amount was spent, the board budgeted $14,000 for 1971. The final special appropriations, made upon the dump's closure in 1973, were for Jack Collett to cover up the dump ($3400), and for other unspecified rehabilitation work, the full amount ($4214) to be paid out only upon the satisfaction of the county health department and township officials.

B

By 1965, Collett began having trouble maintaining the dump. The township declined at first to provide funds for a clean-up, but later got an estimate on "excavating and covering" some of the "old scrap" at the "Township dump." The next year, Collett asked the township to provide a bulldozer. The board discussed the dump's compliance with new state regulations "regarding the operating of a dump," and determined that after some alterations the dump would be in compliance. In August 1966, the board was still concerned with unelaborated "problems" at the dump, and delegated to a committee the job of reporting what could be done to alleviate the problems.

In May 1967, all of the board's members agreed to visit the site. After doing so, arrangements were made (by whom is not clear) for more bulldozing, which was apparently performed the next month. The board agreed to inquire about clearing away some of the accumulated debris by having the Brighton Township Junior Fire Department burn it.

Beginning in the late 1960s, the Michigan state government began regulating dumps more carefully. For Brighton Township, part of this scrutiny included visits by the county sanitarian, who was sometimes accompanied by township officials. Conditions at the dump were so bad that the township was told in May 1971 by the Michigan Department of Public Health to take "drastic measures" to improve the dump; if not, legal action would be taken to close it. The sanitarian's reports noted that the ground water was not being protected; cover placed over the refuse was inadequate; there was no compaction of refuse; no responsible director of the facility was present; fires were burning in the refuse; and the salvage operation had gotten "completely out of hand." The township supervisor was notified of most of these facts in a letter, which also noted that the site did not have the appropriate licensing under state law. In November, another letter from the Department of Public Health to the township supervisor noted that although there were no fires, and the piles of appliances and automobiles had been somewhat "straightened up," conditions were still unacceptable; the threat to close the dump was renewed. In 1972, the board discussed another stern letter from a state health officer regarding the site. The insufficiency of alternative facilities delayed the closure of the dump, but once this was remedied, the dump was shut down in 1973. The board wrote an official letter to the state health officer stating that the township had fulfilled its clean-up duties.

C

In 1989, a federal field investigation team examined the site and determined that there were hazardous materials there, particularly around a cluster of 200 deteriorating drums. In 1990, the EPA sent a technical assessment team to follow up on the earlier examination. The team determined that the site met the criteria under the National Contingency Plan (the set of CERCLA regulations that provides criteria for action, 40 C.F.R. Part 300) for a removal action, the cost of which it estimated at over $400,000.

Through 1995, the United States had incurred $490,948.32 in response costs, exclusive of interest. The government brought suit in March 1994, against both the township and Jack Collett. It obtained a default judgment against Collett in March 1996, and Collett is not participating in this appeal. After a three-day trial in March 1996, the district court, ruling from the bench, found Collett and the township jointly and severally liable for the full amount of response costs plus postjudgment interest, but did not award any prejudgment interest. Final judgment was entered in May, and both Brighton Township and the United States filed timely notices of appeal.

II

A

The township appeals the district court's determination that it is liable for response costs. It raises four arguments. First, it argues that the Brighton Township dump comprised only three acres in the southwest corner of the fifteen-acre Collett property, and that those three acres contained no hazardous waste--therefore, the government should have defined the bounds of the site in a way that excluded the dump. Second, it contends that it did not exercise sufficient control over the site to qualify as a liable "operator" under CERCLA. Third, it claims that all of the hazardous waste at the site was contributed by non-township...