ELR Citation: ELR 20170
No(s). 05-674 (W.D. Mich. Jul 28, 2009)

A district court dismissed a defendant company's motions for summary judgment on claims filed against it for recovery of environmental response costs incurred during the plaintiff's investigation of a Superfund site. The case involves a Superfund site that includes three operable units. The plaintiff is the successor-in-interest to operable unit one, and defendant formerly used operable unit two. The defendant argued that it did not cause a release or threatened release that caused the plaintiff to incur any response costs. But there is sufficient evidence to create a question of fact on this issue. The defendant also argued that it is also entitled to summary judgment because the plaintiff voluntarily expanded the scope of its investigation beyond what was required pursuant to the administrative order on consent (AOC) it entered into with EPA. But even if some of the investigation conducted by plaintiff went beyond the requirements of the AOC, that would not necessarily mean that the investigation was not necessary or consistent with the national contingency plan. Whether plaintiff's costs were necessary and consistent is an issue of fact for trial. The defendant also moved for partial summary judgment on claims that the investigation costs are divisible. But given the fact that much of the defendant's evidence in support of divisibility is found in its reply brief rather than in its original motion, the motion was denied so that the evidentiary record can be more fully developed.

[Prior decisions in this litigation can be found at 39 ELR 20169 and 20179]