The United States District Court for the Western District of Michigan recently held that an association of paper companies was not entitled to recover the cost of cleaning up a site under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") or Part 201 of the Michigan Natural Resources and Environmental Protection Act (Part 201) because the association could not prove that the defendant's release of hazardous substances caused the plaintiff to incur cleanup costs at the site.
The Kalamazoo River Study Group ("River Group"), an unincorporated association of four paper companies, sued eight other companies with facilities on or near the Kalamazoo River, alleging that the other companies contributed to polychlorinated biphenyl contamination on a portion of the Kalamazoo River. The River Group sought reimbursement or contribution under CERCLA and NREPA for response costs it incurred in cleaning up the Allied Paper, Inc./Portage Creek/Kalamazoo River Site in Galesburg, Michigan.
Bentler Industries, Inc., one of the companies sued by the River Group, owned a facility at which transformers leaked PCBs. While responding to this leak, Bentler discovered PCBs throughout its plant and in a drainage ditch on the property that ran toward Morrow Lake, an impoundment of the Kalamazoo River formed by the Morrow Dam. Bentler completed remediation activities and received a clean closure letter from MDNR in 1996.
Bentler sought summary judgment that it was not liable on the theory that the River Group could not prove that the release of PCBs from Bentler's facility caused the River Group to incur response costs.
The court held that the River Group could not prove the necessary connection between the contamination and the response costs incurred in cleaning up the site based on a variety of evidence offered by Bentler to support its theory that any wastewater discharges and storm water runoff from its facility would not have migrated down the drainage ditch and would be absorbed in the soil before reaching Lake Morrow and the Kalamazoo River. In contrast, the River Group's theory of Bentler's liability was based on the assumption that water flowed down the drainage ditch to Morrow Lake. The court rejected testimony offered by the River Group's expert, stating that it based solely on speculation and possibility. "The existence of a possibility does not create a material issue of fact for trial because the River Group bears the burden of proof to show that Bentler did contribute to PCBs in the Kalamazoo River, not that it is possible that it might have contributed to the PCBs," the court stated. Therefore, because the River Group failed to connect the evidence of PCB contamination for which costs were incurred with Bentler's facility, the court granted Bentler's motion for summary judgment that it was not liable for the contamination.
Kalamazoo River Study Group v. Rockwell Int'l, No. 1:95-CV-838 (W.D. Mich. Feb. 21, 1997).
This article was written by Daniella D. Landers, an associate in our Environmental Law Department, and appeared in the May 1997 edition of the Michigan Environmental Compliance Update, our monthly newsletter published by M. Lee Smith Publishers.