US v. Northernaire Plating Co.

• Decision Date: 06 May 1988
• Docket Number: No. G84-1113 CA7.,G84-1113 CA7.
• Parties: UNITED STATES of America, Plaintiff, v. NORTHERNAIRE PLATING CO., Willard S. Garwood and R.W. Meyer, Inc., Defendants and Third-Party Plaintiffs, v. CITY OF CADILLAC, Third-Party Defendant and Fourth-Party Plaintiff, v. R.W. MEYER, Jr., R.W. Meyer Sr., Individually and d/b/a R.W. Meyer Construction Company, Fourth-Party Defendants.
• Court: U.S. District Court — Western District of Michigan

685 F. Supp. 1410

UNITED STATES of America, Plaintiff, v. NORTHERNAIRE PLATING CO., Willard S. Garwood and R.W. Meyer, Inc., Defendants and Third-Party Plaintiffs, v. CITY OF CADILLAC, Third-Party Defendant and Fourth-Party Plaintiff, v. R.W. MEYER, Jr., R.W. Meyer Sr., Individually and d/b/a R.W. Meyer Construction Company, Fourth-Party Defendants.

No. G84-1113 CA7.

United States District Court, W.D. Michigan, S.D.

May 6, 1988.

COPYRIGHT MATERIAL OMITTED

Robert H. Oakley, Asst. Atty. Gen., Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., Thomas J. Gezon, Asst. U.S. Atty., Grand Rapids, Mich., Joel M. Gross, Land and National Resources Div., Environmental Enforcement Section, U.S. Dept. of Justice, Washington, D.C., Babette J. Neuberger, Asst. Regional Counsel, U.S. Environmental Protection Agency, Chicago, Ill., for plaintiff.

Smith Haughey, Rice & Roegge by L. Roland Roegge, John M. Kruis, Grand Rapids, Mich., for defendant R.W. Meyer Inc.

Cholette, Perkins & Buchanan by Michael P. McCasey, Miles J. Murphy, Grand Rapids, Mich., Susan E. Morrison of Siudara, Rentrop, Martin & Morrison, Bloomfield Hills, Mich., for Northernaire Plating and Willard S. Garwood.

Owen J. Cummings of Cummings, McClorey, Davis & Acho, P.C., Livonia, Mich., for third party defendant and the City of Cadillac; Robert P. Tremp, Traverse City, Mich., of counsel.

HILLMAN, Chief Judge.

The facts of this case are detailed in United States v. Northernaire Plating Co., 670 F.Supp. 742 (W.D. Mich.1987). In that opinion, this court found the original defendants Willard Garwood, Northernaire Plating Co. ("Northernaire"), and R.W. Meyer, Inc. ("Meyer") jointly and severally liable to plaintiff for the cost of removing hazardous substances from a site in northern Michigan under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter "CERCLA" or ("the Act"). 42 U.S.C. § 9607(a). Presently before the court are plaintiff's motion for summary judgment on costs and plaintiff's motion to strike jury demand.

I. Plaintiff's Motion to Strike Jury Demand

Defendant Meyer filed a jury demand along with its answer to plaintiff's complaint. Plaintiff's action for recovery under CERCLA is an equitable action, seeking "restitution or reimbursement of the costs it expended in order to respond to the health and environmental danger presented by hazardous substances." United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 749 (8th Cir.1986) (hereinafter "NEPACCO"), cert. denied, ___ U.S. ___, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987); Maryland Casualty Co. v. Armco, Inc., 822 F.2d 1348 (4th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 703, 98 L.Ed.2d 654 (1988). Defendant does not have a right to a jury trial of plaintiff's claim for equitable relief. NEPACCO, supra; see also Tull v. United States, ___ U.S. ___, 107 S.Ct. 1831, 1835, 95 L.Ed.2d 365 (1987) (discussing absence of right to jury trial in equitable actions). Therefore, plaintiff's motion to strike jury demand, to which defendant Meyer has never responded, is granted.

II. Plaintiff's Motion for Summary Judgment on Costs

CERCLA authorizes the EPA "to take direct `response' actions which can include either short-term `removal' actions or longterm `remedial' actions or both, pursuant to the national contingency plan, with funds from the `Superfund,' and to seek recovery of response costs from responsible parties pursuant to Section 107 of CERCLA, 42 U.S.C. § 9607, in order to replenish the Superfund." NEPACCO, 810 F.2d at 731 (footnote omitted). Although this court has already determined that defendants Garwood, Northernaire, and Meyer are liable to the United States for its costs incurred relating to the removal action at the Northernaire site, the court now must determine how much defendants must pay. Prior to 1986, 42 U.S.C. § 9607(a)(4) provided:

Any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities 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 not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

....

Plaintiff, seeking to resolve the question of how much is owed without trial, has submitted documentary evidence which, plaintiff argues, demonstrates that defendants owe plaintiff $234,337.97 in costs incurred by the Environmental Protection Agency ("EPA"), $60,621.99 in prejudgment interest on those EPA costs, and $35,473.28 in costs incurred by the Department of Justice. The most recent cost summary submitted by the plaintiff breaks down the EPA costs as follows: $22,241.69 for EPA payroll; $5,974.70 for EPA travel; $11,641.08 for a contract with "Weston"; $140,419.00 for a contract with "Petrochem"; $993.00 for a contract with "GCA"; $90.00 in miscellaneous expense to "Weston"; and $52,978.50 "indirect cost."¹

Defendants Meyer, Northernaire, and Garwood have filed two briefs in opposition to plaintiff's motion for summary judgment on costs. Defendants raise three reasons which they argue preclude this court from granting plaintiff's motion: 1) plaintiff's costs were inconsistent with the national contingency plan ("NCP") because plaintiff failed to collect and maintain sufficient documentation of costs and because plaintiff's expenses were not cost-effective; 2) genuine issues of fact remain concerning whether or not certain costs were actually incurred; and 3) plaintiff is not entitled to recover "indirect costs" or prejudgment interest under Section 9607.

A. Standard for Summary Judgment

Plaintiff's motion for summary judgment is governed by Federal Rule of Civil Procedure 56. Plaintiff, as movant, carries the burden of demonstrating that no genuine issue of material fact remains and that it is entitled to judgment as a matter of law. Under Rule 56(e), however, defendants may not rest on their pleadings, but must set forth specific facts showing that there is a genuine issue for trial. The standard under Rule 56 mirrors the standard for directed verdict: "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202 (1986). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences from the record in favor of the party or parties opposing the motion, in this case, defendants. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Smith v. Hudson, 600 F.2d 60, 64 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979).

Defendants Garwood and Northernaire request the court deny summary judgment until "further information is obtained" about costs. Specifically, defendants state they wish to engage in further depositions to obtain facts to oppose plaintiff's motion. Before deciding a motion for summary judgment, this court "must provide both parties an opportunity to conduct some discovery." Vega v. First Federal Savings & Loan Assn. of Detroit, 622 F.2d 918, 926 (6th Cir.1980); Bilderback v. City Natl. Bank & Trust Co., 639 F.2d 331, 332 (6th Cir.1981). In Vega, the Sixth Circuit reversed an entry of summary judgment involving costs, stating that the "opportunity for discovery is even more critical in cases ... where one party possesses all of the relevant information. Only through discovery can it be determined whether a material factual issue exists which precludes summary judgment." Id.

Here, as in Vega, one party, plaintiff, possesses most, if not all of the information concerning its costs. However, unlike Vega, there are no discovery disputes pending in this case, nor have defendants been "denied the opportunity to pursue relevant avenues of conquiry concerning the ... costs...." Id. This case was filed in September of 1984, three and one-half years ago. Nearly a year has passed since this court found defendants liable, and over seven months have passed since plaintiff filed its motion for summary judgment on costs. It appears from the record that since that time some discovery has taken place concerning the cost issue. Defendants have had an adequate opportunity to depose those people whom they wished to depose. See also United States v. South Carolina Recycling & Disposal, Inc., 653 F.Supp. 984, 1007-08 (D.S.C.1984) (hereinafter "SCRDI") (United States' motion for summary judgment on costs granted when supported by cost summaries and affidavits as here, and defendants given approximately three months for discovery of cost information).

Moreover, defendants have not moved for a continuance under Fed.R.Civ.P. 56(f). Rule 56(f) authorizes a court to order a continuance to permit further discovery rather than grant a motion for summary judgment, if it appears from the opponents' affidavits that they cannot present facts essential to justify their opposition. Defendants have not filed any affidavits suggesting they are unable to present essential facts. See Anchor Motor Freight v. International Brotherhood of Teamsters, 700 F.2d 1067, 1071 (6th Cir.), cert. denied, 464 U.S. 819, 104 S.Ct. 81, 78 L.Ed.2d 92 (1983). Plaintiff's summary judgment motion on costs is ripe for consideration and is an appropriate method to resolve the pending cost issues in this case. SCRDI, 635 F.Supp. at 1006-07.

B. Consistency with the NCP

Under 42 U.S.C. § 9607(a)(4), the United States may recover costs "not inconsistent with the national contingency plan." The NCP is described in 42 U.S.C. §...