ELR Citation: ELR 20722
No(s). 93-70082 (E.D. Mich. Dec 22, 1993)

The court holds that a city that formerly owned a contaminated site may not recover from another past owner response costs the city incurred in cleaning up the site, because the city failed to comply substantially with the national contingency plan (NCP) as required by §107(a)(4)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that the city is not a "state" for purposes of CERCLA and that therefore, it—not the other past owner—has the burden of showing that its response costs are consistent with the NCP. Under the plain language of the statute, §107(a)(4)(A), which puts the burden of proving NCP's inconsistency on the party from whom reimbursement is sought, only applies when the plaintiff is the federal government or a state. Also, the city was acting as a market participant, rather than a governmental body protecting its citizens, in the sale and later cleanup of the site. The court next holds that the city may recover its response costs only if it complied with NCP standards for a remedial action, not a removal action, because the first phase of the cleanup took place over the course of five years and the second phase has taken three years and is ongoing. Further, the city has demonstrated no imminent threat to health or safety.

The court holds that the city was required to comply with the 1990 version of the NCP, because the soil excavated during the first phase had not been removed from the site and disposed of at a proper facility before the effective date of the regulation. Additionally, the second phase had barely begun. As a result, the city may recover its response costs if it complied substantially—rather than strictly—with the NCP. The court holds that the city did not comply substantially with the NCP, because it failed to provide an opportunity for public comment. Although the Michigan Department of Natural Resources was involved in the case, state regulatory involvement in the remedial process is not a substitute for the public comment contemplated by the NCP. The city held no public meetings and provided no opportunity for the general public to comment on, or participate in, the decision behind the remedial actions that were taken. Moreover, the city failed to conduct an adequate investigation of the possible remedial alternatives and did not perform a remedial investigation/feasibility study.

Counsel for Plaintiff
James E. Baiers
Clark, Klein & Beaumont
1600 First Federal Bldg., 1001 Woodward Ave., Detroit MI 48226
(313) 965-8300

Counsel for Defendants
James D. Robb
Miller, Canfield, Paddock & Stone
150 W. Jefferson, Ste. 2500, Detroit MI 48226
(313) 963-6420