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VME Ams., Inc. v. Hein-Werner Corp.

ELR Citation: 27 ELR 20545
Nos. 95-C-596, 946 F. Supp. 683/(E.D. Wis., 10/08/1996)

The court holds that a property owner's failure to comply with the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) public notice-and-comment requirements under the national contingency plan (NCP) constitutes a substantive and material departure from the NCP that bars recovery from a prior owner of response costs the current owner incurred investigating, removing, and disposing of polychlorinated biphenyl (PCB) soil contamination. The court first holds that it is unnecessary to rule on whether the current owner's cleanup of the property constituted a remedial or removal action. It is undisputed that the owner provided no public notice and no opportunity for public comment at any point during its response activities, and notice to the public and opportunity to comment must be provided regardless of whether a removal or remedial action is performed. The court next holds that because the current owner failed to substantially comply with the requirement of public notice and comment, it cannot recover response costs under CERCLA. The court holds that an upcoming winter freeze actually presented an opportunity for public involvement, not an obstacle thereto. Regardless of whatever mobility the PCB's might have had during warmer temperatures, they would have been frozen in place during the winter months, thus presenting no reasonable threat of migration. The court further holds that a state environmental agency's involvement in this case did not approach the active involvement that some courts have found to be an effective substitute for public comment. The agency did not conduct public hearings on the cleanup, it did not negotiate or issue consent orders, it did not conduct its own investigation of the property, it was not closely involved in monitoring or reviewing the investigations by the owner's consultant, and it was not closely involved in evaluating possible remedial actions. Turning to the owner's claim for preliminary investigation and monitoring costs, the court holds that the owner may not recover costs for investigations and reports that were conducted prior to the discovery of PCBs on the property and for the purposes of compiling information for a potential buyer. The court next holds that the owner may recover in a CERCLA action investigation and other costs expanded in an effort to determine the extent of the PCB contamination. The court holds, however, that the owner cannot recover the costs of any testing or reports conducted after the owner decided to conduct a removal action. Any investigatory activities conducted after that date can no longer be considered initial or preliminary, as the owner has already compiled sufficient information to make a choice as to the appropriate response.

Counsel for Plaintiffs
David J. Edquist
Von Briesen, Purtell & Roper
411 E. Wisconsin Ave., Ste. 700, Milwaukee WI 53202
(414) 276-1122

Counsel for Defendant
Maurice J. McSweeney
Foley & Lardner
Firstar Ctr.
777 E. Wisconsin Ave., Milwaukee WI 53202
(414) 271-2400