ELR Citation: 41 ELR 20144
No(s). 1:10-cv-481 (W.D. Mich. Mar 31, 2011)

A district court granted in part a bottling company's motion to dismiss individuals' tort and state law claims against it for groundwater contamination. The individuals alleged that the company violated the terms of their wastewater discharge permit by spraying excess wastewater over a sustained period of time, that the excess spraying led to contamination of groundwater with heavy metals, and that the contaminated ground water inflicted property damage and physical ailments. However, each individual must state how the company's alleged behavior gives him or her a right to relief. Therefore, only those individuals who met this requirement may go forward with the case. As for the remaining plaintiffs, the court dismissed their negligence per se claims. Negligence per se is not an independent cause of action under Michigan law. Plaintiffs may offer evidence of statutory violations to establish a prima facie case under their claim of negligence, but they may not maintain a separate claim of negligence per se. In addition, Michigan does not recognize claims of trespass where groundwater contamination is the only alleged injury. Accordingly, the trespass claims were dismissed as well. The court also dismissed the individuals' Michigan Natural Resources and Environmental Protection Act claims to recover the cost of bottled water for drinking and cooking and for the replacement or repair of plumbing fixtures and other personal property. Costs that are not associated with "response activities" are not recoverable under the Act. And the court dismissed the individuals' claims for injunctive and declarative relief under the Michigan Environmental Protection Act because their request to have the company perform additional response activities not required by the state environmental agency is tantamount to challenging the adequacy of the agency's decisions with respect to remedial action. Courts do not have subject matter jurisdiction to review an ongoing environmental response directed by the agency.