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United States v. Brighton, Township of

ELR Citation: 29 ELR 20045
Nos. 96-1802, -1992, 153 F.3d 307/(6th Cir., 08/25/1998)

The court remands a district court decision holding a township jointly and severally liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for the cleanup of property once used as a dump. The court first holds that the U.S. Environmental Protection Agency properly defined the facility in question to include the township dump. The facility's owner used the entire property as a dump, and so it is appropriately classified as a single facility. Even though township residents generally left their refuse in a corner of the property, it appears that the entire property was operated as a dump. Nothing in the agreement between the township and the facility's owner limited township dumping to the corner. Moreover, the property owner also moved trash from one part of the property to another.

Thecourt next holds that an actual control test applies to determine if the township is an operator for CERCLA purposes. Before one can be considered an operator for CERCLA purposes, one must perform affirmative acts. The failure to act, even when coupled with the ability or authority to do so, cannot make an entity into an operator. The court then holds that it cannot determine if the township was or was not an operator. The inquiry is properly left to the district court, utilizing the actual control standard. The court next holds that if the township is held to be liable as an operator, sufficient evidence exists of hazardous materials being brought to the site during the township's relationship with the site to support a determination of the township's CERCLA liability.

The court then remands to the district court the issue of divisibility of harm caused by contamination at the site. The township offers two bases for divisible apportionment, and the district court should be receptive to any argument for divisibility that provides a reasonable basis—sounding in causation, not equity, or normative fault—for distinguishing between the harm caused by the township and the harm caused by others. The court last holds that prejudgment interest is mandatory when CERCLA §107 damages are awarded. Therefore, the court remands to the district court for a calculation of an award of prejudgment interest to the United States, if the district court imposes liability on the township.

Counsel for Plaintiff
Andrew C. Mergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Juliet E. Pressel
Wise & Marsac
Buhl Bldg., 11th Fl., Detroit MI 48226
(313) 962-0643

Before Moore and Dowd,* JJ.