Jump to Navigation
Jump to Content

Pape v. Menominee Paper Co.

ELR Citation: 26 ELR 20905
Nos. No. 2:93-CV-236, 911 F. Supp. 273/(W.D. Mich., 05/06/1994)

The court holds that a citizen suit against a paper products manufacturer failed to state a claim under the Resource Conservation and Recovery Act (RCRA); that §309 of the Federal Water Pollution Control Act (FWPCA) bars an FWPCA citizen suit against the manufacturer; and that a genuine issue of material fact precludes summary judgment on a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claim against the manufacturer. The court first notes that plaintiff concedes that because Michigan's hazardous-waste program supersedes RCRA subtitle C, the RCRA §3004 claim is barred. The court holds that plaintiff failed to plead properly any claims under RCRA other than those that Michigan law has superseded. Although plaintiff alleges violations of RCRA §4005(a) and 40 C.F.R. part 257, the complaint does not mention any violation of §4005, and part 257 is not intended to be the sole basis of a legal claim. The court grants plaintiff leave to amend the complaint to include state claims analogous to the RCRA claims, because such amendment would not prejudice the manufacturer. The court also holds that FWPCA §309 bars plaintiff's FWPCA claim, because Michigan's Water Resources Commission Act is comparable to the FWPCA's citizen suit provision and there is no dispute that the Michigan Department of Natural Resources' (MDNR's) pursuit of a consent order and subsequent enforcement actions constitute diligent prosecution.

The court next holds that the consent order the manufacturer reached with the MDNR does not bar plaintiff's CERCLA claim pursuant to CERCLA §310, because the manufacturer has not claimed that the U.S. Environmental Protection Agency is prosecuting an action against it. In addition, although an action may not be brought under CERCLA for a wholly past violation, plaintiff alleges ongoing violations, and the court has no reason to believe that the allegations are not made in good faith. The court holds, however, that a genuine fact question remains as to whether hazardous substances are being released in reportable quantities from the manufacturer's landfill. An affidavit of the manufacturer's attorney states that a deposition of the owner of a well on property bordering the landfill has been noticed but postponed pursuant to a discovery stay. Finally, the court denies as moot plaintiff's motion to strike portions of two affidavits.

Counsel for Plaintiff
Brent D. Ward
Parry, Murray, Ward & Cannon
1270 Eagle Gate Tower
60 E. South Temple St., Salt Lake City UT 84111
(801) 521-3434

Counsel for Defendant
Cynthia M. York
Dickinson, Wright, Moon, Van Dusen & Freeman
500 Woodward Ave., Ste. 4000, Detroit MI 48226
(313) 223-3500