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United States v. Northernaire Plating Co.

ELR Citation: 18 ELR 21338
Nos. No. G84-1113 CA7, 685 F. Supp. 1410/28 ERC 1500/(W.D. Mich., 05/06/1988) Plaintiffs' motion for summary judgment partially granted

The court holds that the Environmental Protection Agency's (EPA's) decision to bypass the competitive bidding process was consistent with the National Contingency Plan (NCP), and EPA may recover indirect costs and prejudgment interest. The court holds that the defendant is not entitled to a jury trial because an action for recovery under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is an equitable action. The court holds that EPA's actions were consistent with the NCP. EPA properly submitted the necessary documents accounting for the response costs incurred as required by 40 C.F.R. §300.69. EPA's actions were also cost-effective as required by 40 C.F.R. §300.68. The court holds that the EPA's characterization of the site to be an imminent threat and subsequent action to bypass the competitive bidding process were not arbitrary and capricious, were cost-effective, and were in accordance with the law. Where an imminent threat of injury was caused by rusty cyanide tanks which were to be stable for fewer months than the bidding process required, EPA's action was proper. The court holds that EPA is not entitled to recover costs for a title search where they failed to select the most cost-effective price. The court holds that the government's use of several attorneys and EPA negotiators, its allocation of travel costs, its incurrence of payroll expenses two years after the removal action but prior to litigation, and the Department of Justice's request for expense recovery were all consistent with the NCP. The court holds that under CERCLA §107 the plaintiff may recover indirect costs which are not directly identified to efforts at a specific site. The broad remedial purpose of CERCLA, the language of §104(b), CERCLA's definitions of response costs, the silent legislative history, and sparse precedent on point, support a liberal interpretation of recoverable indirect costs. The court finally holds that under CERCLA §107(a)(4), as amended in 1986, prejudgment interest must be awarded even though the amendments requiring such action passed after the interest accrued. The court notes that even if the 1986 amendment did not apply, it would exercise its discretion to award prejudgment interest.

[A previous decision to this litigation is published at 18 ELR 20712.]

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

Thomas J. Gezon, Ass't U.S. Attorney
399 Federal Bldg., 110 Michigan St. NW, Grand Rapids MI 49503
(616) 456-2404

Counsel for Defendant (R.W. Meyer, Inc.)
L. Roland Roegge, John M. Kruis
Smith, Haughey, Rice & Roegge
200 Calder Plaza Bldg., 250 Monroe Ave NW, Grand Rapids MI 49503
(616) 774-8000

Counsel for Defendant (Northernaire Plating and Willard S. Garwood)
Michael P. McCasey, Miles J. Murphy
Cholette, Perkins & Buchanan
600 Old Kent Bldg., One Vandenberg Center, Grand Rapids MI 49503
(616) 774-2131