ELR Citation: ELR 20712
No(s). G84-1113 CA7 (W.D. Mich. Apr 30, 1987)

The court holds that the owner, operator, and a corporate officer of an electroplating facility are jointly and severally liable under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs incurred by the United States. The court first holds that an affidavit submitted by the Environmental Protection Agency (EPA) that relies on EPA and Michigan Department of Natural Resources reports is admissible, since the reports fall within the public record exception to the hearsay rule. The court next holds that defendants are liable under CERCLA for the costs incurred by EPA during its immediate removal action at the site. The site is a "facility" under CERCLA §101(9), since hazardous substances are located there. There has been a "release" as defined in CERCLA §101(22), since hazardous substances were found in the soil and defendants have failed to show that the contamination was caused by another source. Further, the abandonment of large quantities of hazardous chemicals at the site, when combined with defendants' unwillingness to take responsibility for the cleanup, created a threatened release. The release and threatened release caused the United States to incur response costs. Finally, the owner, operator, and a corporate officer who had responsibility for arranging for the disposal of hazardous waste are all covered persons under CERCLA §107(a). The court holds that the third-party defense in CERCLA §107(b)(3) is not available to any of the defendants, since the parties had a contractual relationship. The court holds that defendants are jointly and severally liable, since the harm is indivisible. The court declines to hold the city where the facility is located liable for contribution or indemnification of the response costs for which two defendants may be liable, since material facts remain as to the city's liability.

Counsel for Plaintiff
Robert H. Oakley, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Defendant
Michael P. McCasey, Albert J. Engel III
Cholette, Perkins & Buchanan
600 Old Kent Bldg., One Vandenberg Center, Grand Rapids MI 49503
(616) 774-2131