ELR Citation: ELR 21461
No(s). 5:90-CV-62 (W.D. Mich. Apr 23, 1993)

The court denies motions for summary judgment on the liability of corporate officers under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Michigan Environmental Response Act for the contamination of two Michigan sites because the evidence of the officers' involvement in environmental decisions is subject to conflicting interpretations and credibility determinations must be made. The court first holds that the state met its burden of showing that a release or threatened release occurred at one site, because the officers admitted that substances deposited there meet the definition of hazardous waste under the Resource Conservation and Recovery Act. The court next indicates that the officers are not liable as "owners" under CERCLA. Although together they held all the voting stock of the corporation, the state has not shown that any of them performed his responsibilities only with the consensus of the others. The court rules that corporate officers may be liable as operators under CERCLA, because this is consistent with both the purpose for which Congress enacted CERCLA and Sixth Circuit cases interpreting CERCLA. Finally, the court holds that the "direct control or participation" test is the appropriate standard to assess operator liability, but holds that summary judgment is improper.

[A prior decision in this litigation is published at 23 ELR 20424.]

Counsel for Plaintiffs
Paul Novak
State Attorney's Office
Environmental Protection Division
P.O. Box 30212, Lansing MI 48909
(517) 373-7780

Counsel for Defendants
Jon Muth
Miller & Johnson
800 Calder Plaza, Grand Rapids MI 49503
(616) 459-8311