ELR Citation: ELR 20712
No(s). G89-10503 CA (W.D. Mich. Dec 18, 1989)

The court holds that the Michigan Department of Natural Resources (MDNR) is subject to liability under §107(a)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as an operator for its activities at a hazardous waste site, and is a responsible party under CERCLA §107(a)(3) as a party who arranged for the disposal of hazardous wastes at the site. The MDNR and the successor to plaintiff's ownership of the site entered into an agreement whereby the successor would pay MDNR $600,000 in return for MDNR's not holding the successor responsible for any remedial actions deemed necessary as a result of the prior contamination, and the successor would be allowed to properly dispose of phosgene at the site. The agreement included provisions purportedly requiring MDNR to remove and dispose of waste and to operate purge wells on the site. The court holds that MDNR was an operator under CERCLA §107(a)(2), since it undertook hands-on activities that resulted in contamination of the groundwater in the area of the site. Such regulatory activity, once assumed and not performed, requires that party to bear the responsibility for any pollution that results. Moreover, the court holds that MDNR's involvement at the site caused or contributed to the spread or migration of hazardous substances constituting a disposal and release. The court next holds that MDNR is a responsible party under CERCLA §107(a)(3) because it was the sole party responsible for controlling the disposal of certain wastes and operating the purge wells. The court rejects MDNR's claims that it is contrary to congressional intent under CERCLA to impose liability for remedial actions taken by a state, since it would be consistent with CERCLA to hold MDNR liable if plaintiff proves its allegations. Finally, the court rejects MDNR's claim that it is exempt from liability under CERCLA because it was responding to an emergency, since no evidence was presented to show that MDNR acted under emergency circumstances.

Counsel for Plaintiff
Gordon J. Quist, J. Michael Smith
Miller, Johnson, Snell & Cummiskey
800 Calder Plaza Bldg., Grand Rapids MI 49503
(616) 459-8311

Randy M. Mott, Raissa Kirk
Mott, Williams & Lee
Washington Harbour, Ste. 240, 3050 K St. NW, Washington DC 20007
(202) 944-4700

Counsel for Defendants
John D. Tully
Warner, Norcross & Judd
900 Old Kent Bldg., 111 Lyon St. NW, Grand Rapids MI 49503
(616) 459-6121

Kathleen L. Cavanaugh, Ass't Attorney General
Environmental Protection Division
Michigan Department of Natural Resources, P.O. Box 30212, Lansing MI 48909
(517) 373-7780