ELR Citation: ELR 20144
No(s). 88-CV-73784-DT (E.D. Mich. Aug 9, 1989)

The court holds that a consent decree in an action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) filed by the Environmental Protection Agency (EPA) against 12 potentially responsible parties does not violate state "applicable or relevant and appropriate requirements" (ARARs). The court first grants Michigan's motion to intervene to challenge EPA's compliance with state ARARs. Michigan argues that the soil flushing remedy selected by EPA is less protective than the excavation and incineration remedy in EPA's original record of decision. The court holds that the state is not entitled to intervention for its claim under CERCLA §121(e)(2) requesting the court to force EPA and the settling defendants to comply with cleanup standard requirements not met in the consent decree. The court holds that §121(e)(2) only authorizes a state to enforce provisions of existing consent decrees, not to impose additional remedies outside of the decree. A contrary intepretation would nullify the effect of §121(f), which provides states with an elaborate mechanism to ensure that EPA remedial actions comply with all applicable state and federal standards. The court holds that the state is entitled to intervene to raise its claim under CERCLA §121(f) that EPA has failed to comply with state ARARs. The court holds that although §121(f)(2)(B) limits judicial review to the administrative record, a state would be entitled to de novo review of EPA's selected remedy if it can establish that EPA's factfinding procedures were inadequate. Michigan has not established that EPA did not follow appropriate procedures. The court holds that the state is entitled to assert a claim under §107 for natural resource damages, but declines to address this claim because it would unnecessarily complicate the case. The court holds that CERCLA preempts Michigan's claims under the Michigan Water Resources Commission Act and public nuisance law. Allowing Michigan to pursue its state law claims could result in orders requiring defendants to perform two inconsistent cleanup procedures.

The court next grants EPA's motion for entry of the consent decree. The court holds that Michigan's groundwater antidegradation law qualifies as an ARAR under §121(d). Although the law provides no numerical standards, it is legally enforceable and of general applicability as required by an EPA guidance document. The law was also timely identified by EPA as a potential ARAR. Further, the broad prohibition in the state law is more stringent than the specific standards in the federal Safe Drinking Water Act, and the state requirements are legally applicable to the cleanup of the site. The court holds that the decree's use of soil flushing does not violate the ARAR, since EPA's determination that the geology of the site may be conducive to soil flushing is not arbitrary and capricious. The decree's failure to define in detail the remedies to be used if soil flushing fails or to include target contaminant levels do not violate the ARAR. The court notes that a determination of whether the remedy complies with the ARAR is appropriate only when the remedy is completed. The court holds that the decree is not arbitrary and capricious. EPA adequately explained its decision to select soil flushing. The court holds that the decree is fair and reasonable because it assures that the soil will be effectively cleaned up by requiring defendants to propose an alternative remedy if soil flushing is ineffective. The record supports EPA's determination that the seven to 12 additional years that soil flushing may require is not unreasonable.

Counsel for Plaintiff
Geneva S. Halliday, Ass't U.S. Attorney
817 Federal Bldg., 213 W. Lafayette, Detroit MI 48226
(313) 237-0400

Barbara Ann Rogers
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-4113

Robert P. Reichel, Ass't Attorney General
Law Bldg., Lansing MI 48913
(517) 373-1110

Counsel for Defendants
Keith J. Lerminiaux
Vandeveer Garzia
333 W. Fort St., Ste. 1600, Detroit MI 48226
(313) 961-4880