United States District Court, W.D. Michigan, Southern Division
CHARTER TOWNSHIP OF LANSING and LANSING TOWNSHIP DOWNTOWN DEVELOPMENT AUTHORITY, individually and on behalf of all others similarly situated, Plaintiffs,
LANSING BOARD OF WATER AND LIGHT, Defendant.
T. NEFF United States District Judge.
putative class action lawsuit stems from a decades-long
effort to resolve water run-off problems in Lansing Township
and is the culmination of a long-running disagreement over
apportioned costs for a $12 million drain project among the
affected governmental entities and landowners. Plaintiffs
Lansing Charter Township and Lansing Township Downtown
Development Authority contend that a large portion of the
multi-million project cost is attributable to Defendant
Lansing Board of Water and Light's actions to remedy
environmental contamination on their property, which
necessitated the extensive drain project. After failing to
obtain satisfactory relief in the administrative process and
state court appeals related to the drain project assessment,
Plaintiffs filed this suit seeking separate recovery of
environmental response costs under the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. § 9607(a), and the
Michigan Natural Resources and Environmental Protection Act
("NREPA"), MICH. COMP. LAWS § 324.101 et
seq. Defendant Lansing Board of Water and Light
("LBWL" or "BWL") has filed a motion to
dismiss or in the alternative, for summary judgment (Dkt 33).
Plaintiffs have filed a Response in opposition (Dkt 36);
Defendant has filed a Reply (Dkt 37). Having fully considered
the parties' submissions, the Court concludes that oral
argument would not assist in the disposition of the issues
presented. See W.D. Mich. LCivR 7.2(d).
Defendant's Motion is denied.
case has its genesis in groundwater contamination linked to
Defendant's North Lansing Landfill #2 (NLL) beginning in
1993 and plans for a storm drain in the Groesbeck Drain
District encompassing the landfill, which evolved from a
$600, 000 plan in 1995 to a 2013 plan at an estimated cost of
$ 12.595 million. The Ingham County Drain Commissioner
("ICDC") apportioned the cost of the 2013 drain
project pursuant to Michigan statutory provisions, assessing
49.5 percent of the cost to the Township, and 30.0846 percent
to Defendant. Plaintiffs allege that the increase in costs
from the 1995 Drain was caused primarily by the releases, and
threat of releases, of contaminants at the NLL site and by
Defendant's construction of a slurry wall on the site to
contain contamination. Plaintiffs contend that if those
contaminants had not been released, the groundwater could
drain naturally and the extensive new drain system would be
unnecessary. Plaintiffs seek class action status to recover
damages and obtain injunctive relief on behalf of real
property owners who have incurred, or will be compelled to
incur,  Drain Assessment Costs as a result of
Defendant's release or threat of release of hazardous
substances or contamination.
to this Court's dispositive motion procedures, the
parties have stipulated to the following Joint Statement of
Material Facts (JSMF) (Dkt 38) for purposes of the motion.
Background of the Groesbeck Drain.
Groesbeck Drain (the "Drain") is a drain district
initially laid out by the Ingham County Drain Commissioner in
petition to establish the Drain was filed in 1990. A Board of
Determination was convened and ultimately determined that the
Drain was necessary.
May 13, 1999, the Ingham County Road Commission filed a
petition with the Ingham County Drain Commissioner to
"clean out, widen, deepen, straighten or extend"
the Drain, in accordance with the Drain Code.
Issues pertaining to the decisions of the Board of
Determination and of necessity were resolved by the Michigan
Court of Appeals in an unpublished Per
curiam opinion dated May 17, 2002. Standard
Aggregates, Inc. et al. v. Ingham County Drain Commissioner
et al, Michigan Court of Appeals No. 226464, lv. to
appeal den. 467 Mich. 952 (2003). At the conclusion of
those judicial proceedings, a "Final Order of
Determination" was issued and the Drain Commissioner
finalized a plan for the construction, financing, and
apportionment of costs for the Drain.
Background of the North Lansing Landfill (the
1979, the BWL acquired fee ownership of 40.44 acres of land
in Lansing Township that has since become known as the NLL.
1979, the BWL applied for and acquired a license from the
Michigan Department of Natural Resources ("MDNR")
to operate a Type III landfill for disposal of coal ash
resulting from the BWL's steam electric operations in
July 7, 1994, the Michigan Department of Environmental
Quality ("MDEQ") advised the BWL that 1993 and 1994
groundwater sampling showed elevated levels of selenium
consistent with the disposal of ash at the NLL. The MDEQ
further stated that "[d]uring the first quarter 1994
sampling, boron was also detected in four different
March 25, 1996, MDEQ denied the LBWL's application for
arenewal of a license to dispose of ash at the NLL.
Between 1994 and 2008, the NLL was the subject of significant
environmental review, including soil and groundwater testing
and various proposed plans to address contamination at the
site. The BWL provided remedial action plans and proposals
for remediation of groundwater-related issues at the NLL to
2005, new construction plans for the drain were created
2008 the BWL began construction of a slurry wall system that
consolidated the contaminated soil and fly ash at the site
and encapsulated it within a clay barrier.
the same time, the BWL installed a pumping system to pump
groundwater from the contained area to a City of Lansing
water treatment facility.
a part of its construction of the remediation system, the BWL
also established a gradient control system.
Construction of the slurry wall began in May 2008.
Construction of the gradient control system began in
slurry wall system was fully approved and is monitored by the
The Apportionment of Cost for the Drain.
Under § 151 of the Michigan Drain Code (MCL §
280.151), a County Drain Commissioner is charged with
calculating the cost of improvements to a drain and with
apportioning those costs among the owners of property within
a drainage district.
Commissioner determined the cost of the drain improvement
project to be approximately $12, 595, 000. The LBWL has been
assessed 30% of the costs; Plaintiffs have been assessed the
majority of the costs.
cost apportionment was litigated through administrative and
appellate proceedings ("State Court Proceedings").
Plaintiffs filed this action on May 28, 2014 prior to the
conclusion of the State Court proceedings. On October 24,
2014, this Court stayed the case pending final resolution in
the Michigan Court of Appeals and the Michigan Supreme Court.
This case was re-opened on or about March 9, 2015.
Complaint alleges nine counts:
Count I: CERCLA § 107 Cost Recovery (All Plaintiffs v.
Count II: CERCLA Declaratory Judgment (All Plaintiffs v.
Count III: Cost Recovery - Michigan Natural Resources and
Environmental Protection Act (All Plaintiffs v. LBWL)
Count IV: Declaratory Relief - NREPA (All Plaintiffs v. LBWL)
Count V: Public Nuisance (Lansing Township v. LBWL)
Count VI: Private Nuisance (All Plaintiffs v. LBWL)
Count VII: Fed.R.Civ.P. 23(b)(2) (DDA and Class ...