ELR Citation: ELR 21240
No(s). 89-CV-71165-DT (E.D. Mich. Mar 31, 1992)

The court holds that material issues of fact exist in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) response cost action brought by the owner and operator of land subject to a CERCLA cleanup order against successors to the corporation that owned the property when the alleged contamination occurred, and summary judgment for either party is inappropriate. The court also denies plaintiffs' motion to bifurcate the case into liability and damages phases, because proof of damages is considered an element of a prima facie CERCLA case. Although the successors to the previous corporate owner misconstrue CERCLA §107(a)(2) to require that an owner must actually dispose of hazardous substances to be liable under CERCLA, the facts do not establish that hazardous substances were disposed of on the site at the time the successors' prior corporate owner owned the site. The court also holds that under the American Rule, attorney fees are not recoverable in private CERCLA response cost actions because Congress did not explicitly authorize such fees. To consider private parties' attorney fees as recoverable CERCLA response costs would impermissibly strain the language of CERCLA and its regulations. The court also holds that factual issues remain that preclude summary judgment on whether plaintiffs are insulated from liability under CERCLA's third-party defense.

[Prior decisions in this litigation are published at 20 ELR 20442 and 21 ELR 20497.]

Counsel for Plaintiffs
Allyn D. Kantor
Miller, Canfield, Paddock & Stone
101 N. Main St., 7th Fl., Ann Arbor MI 48104
(313) 663-2445

Counsel for Defendants
Paul E. Gutermann
Squire, Sanders & Dempsey
1201 Pennsylvania Ave. NW, Washington DC 20044
(202) 626-6600