ELR Citation: ELR 21040
No(s). 90-CV-72028-DT (E.D. Mich. Mar 9, 1992)

The court holds that a lower court properly determined that plaintiffs' Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost-recovery action filed on July 12, 1990, against a chemical manufacturer, its waste hauler, and the former owner of the Stevens Landfill Superfund site is not barred by CERCLA §113(g)(2)'s statute of limitations, because all of the on-site activities taken by the Michigan Department of Natural Resources (MDNR) and its cleanup and investigation contractors between November 1985 and July 15, 1987, constitute one removal action. Although defendants do not dispute their liability for state cleanup costs incurred at the site from July 1987 forward, they argue that the removal of 1,100 drums of contaminated soil from the site between November 1985 and March 1986 was an entirely separate removal from the subsequent removal of four drums and associated contaminated soil on July 15, 1987, and thus, CERCLA's three-year statute of limitations on bringing cost recovery actions bars plaintiffs' action for pre-1987 costs filed on July 12, 1990.

The court first holds that CERCLA §113(g)(2)'s statute of limitations applies to this action, because removal activities at the site were not completed prior to October 16, 1986, the effective date of the "three-years after completion of removal" CERCLA statute of limitations contained in the Superfund Amendments and Reauthorization Act (SARA). Although cleanup at the site began prior to SARA's enactment, the statute of limitations is only inapplicable to pre-SARA "accrued" CERCLA claims for which removal was completed prior to October 16, 1986. Cleanup at the Stevens site was not complete until July 1987. The court next holds that the lower court correctly determined that the on-site activities from November 1985 through July 1987 constituted one removal, even though two different cleanup contractors performed the November 1985-March 1986 and July 1987 cleanups and the July 1987 cleanup contract was separately bid after the remedial investigation/feasibility study (RI/FS) was completed. Aside from the plain language in CERCLA §101(23) describing activities included in removal actions, courts have determined that RI/FSs constitute CERCLA removal actions. Thus, although removal from one area of the site where a blue liquid was ponded was deferred until July 1987, to allow for further testing, it did not constitute a separate removal action from the activities begun in 1985. This determination is also consistent with Congress' intent that CERCLA be liberally construed and that those responsible for the creation of hazardous waste sites bear the costs of cleanup of those sites. The court also holds that, based on the lower court's proper determination as to the statute of limitations, laches is not available as a defense.

The court next holds that §12(3)(a) of the Michigan Environmental Response Act (MERA), which establishes a cause of action for the recovery of money expended by the state for evaluation and response activities, does not violate the Equal Protection Clauses of either the United States or the Michigan Constitutions. MERA is patterned after CERCLA, and MERA's response recovery provisions, like CERCLA's response recovery provisions, are justified by a rational legislative purpose of providingremedies for facilities posing any threats to public health, safety, welfare, or the environment. Thus, MERA violates neither Michigan's Constitution nor the U.S. Constitution, since the test to determine whether legislation comports with the due process clause under the Michigan Constitution is the same as the federal test—whether the legislation bears a reasonable relationship to a permissible objective. Moreover, MERA §12(a)(3)'s recovery provision, which excepts costs of response activities in those cases where cost recovery actions have been filed prior to July 11, 1990, does not form an impermissible classification in violation of the Equal Protection Clauses of the United States and Michigan Constitutions, because differentiating between actions pending prior to and after promulgation of MERA rules is not wholly irrational. When the issue is social or economic legislation, such as MERA with its stated intent to eliminate the dangers to the public health, safety, and the environment caused by environmental contamination, wide latitude must be given. Thus, there is a sufficiently rational basis for excepting from MERA's cost recovery provision those cases that were filed before the MDNR's July 11, 1990, promulgation of MERA rules.

Finally, the court holds that application of MERA to this case does not violate the Separation of Powers Doctrine, even though the Michigan Legislature amended MERA after defendants filed their summary judgment motions regarding the statute of limitations. The MERA provision at issue was enacted on October 8, 1990, but ordered not to take effect until July 11, 1991. Moreover, no legislative history surrounding the amendment, or other evidence, establishes that Michigan enacted the amendments to obtain a favorable decision in this case.

Counsel for Plaintiff
Frank J. Kelley, Attorney General
PO Box 30212, Lansing MI 48909
(517) 373-7780

Counsel for Defendants
Steven Kohl
400 Terrace Plaza, PO Box 1488, Muskegon MI 49443
(616) 722-2671