ELR Citation: ELR 20285
No(s). s. 4:87-CV-364, 1:90-CV-397 (W.D. Mich. Aug 12, 1994)

The court holds that the holder of an easement over contaminated property is not liable as an owner or operator under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or §12 of the Michigan Environmental Response Act (MERA). The easement holder and the holder of the fee interest in the land granted another company permission to construct a loading dock on the property. Certain barrels stored on the loading dock contained hazardous materials, which leaked or were spilled. The court first holds that the easement holder is not liable as an owner or operator under MERA §12 because MERA §3 excludes from the definitions of owner and operator any person that acquired access to a facility through an easement. If the loading dock is located on the easement holder's own property, the easement holder would be liable as the owner of that site and the easement-holder exception would not apply because the easement holder could not hold an easement over its own property. Turning to the plaintiff's CERCLA claim, the court holds that the easement holder is not an owner of the easement property within the ordinary meaning of owner. The only entities that own the property in the dictionary sense are the holder of the fee interest and possibly the holder of a leasehold in the property. The court finds that under case law a person will be liable as an operator of a facility if the person has sufficient authority to control the operational decisions of another who is the operator of the facility. The court finds that the easement holder did not exert control over the hazardous waste disposal or storage decisions of the chemical company that unloaded the barrels at the loading dock, and did not have authority to do so. Although the easement holder had the right to require interfering rights to cease if and when it chose to use the easement, because it used the easement only once or twice, the chemical company did not interfere with the easement holder's use of the easement other than at these times. Even if the chemical company's use of the loading dock had interfered with the easement holder's right to use the easement, the easement holder's right to control the chemical company's use was limited by the easement holder's agreement with the company that built the loading dock. Because the company that built the loading dock has 15 days to remove items obstructing the easement holder's use of the easement, the easement holder waived its right to demand immediate removal of the items. Also, if the easement holder had the authority to prevent the chemical company's use of the loading dock for storing barrels, this is insufficient to establish liability against the easement holder as an operator, because the easement holder did not exert actual control over the chemical company's disposal or storage of hazardous waste. Finally, the court denies a motion by the fee interest holder for summary judgment as to the easement holder's liability with regard to the portion of the loading dock allegedly located on the easement holder's own property. There are genuine issues of material fact, including whether any part of the loading dock is on that property, whether the property is part of the Superfund site, and whether a release occurred on the property.

Counsel for Plaintiff
R. Craig Hupp
Bodman, Longley & Dahling
100 Renaissance Ctr.
34th Fl., Detroit MI 48243
(313) 259-7777

Counsel for Defendants
Charles R. Bappert
Biringer, Hutchinson & Van Doren
Century Bank & Trust Bldg.
Coldwater MI 49036
(517) 279-9745