ELR Citation: ELR 21433
No(s). 1:89-CV-729 (W.D. Mich. Mar 30, 1994)

The court holds that a township that had the authority to control a landfill operation on property it had leased and for which it had contracted with the owner of the land to operate the property as a landfill is potentially liable as an "operator" in a §107 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) private cost recovery action. The court first holds that the township was an operator of the facility by virtue of the fact that it had the authority to control the operation. The township need not have been actively involved in the day-to-day management of the landfill's operation. The court also holds that genuine issues of fact remain as to whether two other defendants can be held liable as arrangers under CERCLA §107(a)(3). The evidence connecting these defendants to contamination at the site does not provide a sufficient nexus betweenthe defendants and the hazardous substances to find them liable as arrangers.

The court holds that the landowner's response costs are not recoverable because the landowner failed to show substantial compliance with the national contingency plan (NCP). The landowner did not substantially comply with the requirement that its response actions provide an opportunity for public comment concerning the selection of the response actions. Although the landowner held public hearings, the hearings did not discuss or analyze response action alternatives, the environmental impact of the contamination or the proposed remediation, or the plan's cost effectiveness. This failure constitutes a fundamental defect that precludes the landowner's actions from substantially complying with the NCP. Finally, the court holds that a settling defendant's contractual indemnification claims against one defendant are barred by the plain language of a three-year limitations clause in the asset purchase agreement between the parties.

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

Counsel for Defendants
Daniel K. Reising
Sanders & Stein
21 N. 4th St., Grand Haven, MI 49417
(616) 842-0200