Case 2:22-cv-10619-MFL-DRG ECF No. 1, PageID.1 Filed 03/23/22 Page 1 of 24
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`REVERE DOCK, LLC,
`ERICKSON’S INC., and
`NEWCORP, INC.,
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`Plaintiffs,
`
`v.
`
`DETROIT BULK STORAGE,
`INC.,
`
`Case No.: 2:22-cv-10619
`Hon.
`
`
`JURY TRIAL DEMANDED
`
`Defendant.
`__________________________________________________________________/
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`COMPLAINT
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`Plaintiffs, Revere Dock, LLC (“Revere”), Erickson’s Inc. (“Erickson’s”), and
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`Newcorp, Inc. (“Newcorp”) (collectively, “Plaintiffs”), by and through their
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`attorneys, Butzel Long, a professional corporation, state as follows:
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`PRELIMINARY STATEMENT
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`1.
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`This case arises out of the November 26, 2019 collapse (the “Collapse”)
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`of the riverbank and a dock on the Detroit River located at 5851 West Jefferson
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`Avenue, Detroit, Michigan (the “Property”). The Collapse was caused by the
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`wrongful conduct of Defendant, Detroit Bulk Storage, Inc. (“DBS”), which
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`conducted its business at the Property at the time in question pursuant to a lease
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`between DBS and Revere, the owner of the Property.
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`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`REVERE DOCK, LLC,
`ERICKSON’S INC., and
`NEWCORP, INC.,
`
`Plaintiffs,
`
`v.
`
`DETROIT BULK STORAGE,
`INC.,
`
`Case No.: 2:22-cv-10619
`Hon.
`
`
`JURY TRIAL DEMANDED
`
`Defendant.
`__________________________________________________________________/
`
`COMPLAINT
`
`Plaintiffs, Revere Dock, LLC (“Revere”), Erickson’s Inc. (“Erickson’s”), and
`
`Newcorp, Inc. (“Newcorp”) (collectively, “Plaintiffs”), by and through their
`
`attorneys, Butzel Long, a professional corporation, state as follows:
`
`PRELIMINARY STATEMENT
`
`1.
`
`This case arises out of the November 26, 2019 collapse (the “Collapse”)
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`of the riverbank and a dock on the Detroit River located at 5851 West Jefferson
`
`Avenue, Detroit, Michigan (the “Property”). The Collapse was caused by the
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`wrongful conduct of Defendant, Detroit Bulk Storage, Inc. (“DBS”), which
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`conducted its business at the Property at the time in question pursuant to a lease
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`between DBS and Revere, the owner of the Property.
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`
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`Case 2:22-cv-10619-MFL-DRG ECF No. 1, PageID.2 Filed 03/23/22 Page 2 of 24
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`2.
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`The Property included a commercial dock. The Collapse occurred
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`because DBS improperly loaded and stored on the Property thousands of tons of
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`materials such as sand, gravel and/or crushed stone (collectively, “Aggregate”). The
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`Collapse resulted in the Aggregate, as well as the asphalt pad and other surface
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`materials on which the Aggregate was placed (collectively, the “Released
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`Materials”), sinking into the earth and pushing the earthen material through the
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`seawall of the dock and into the Detroit River. The Property has been in heavy
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`industrial use for over a century, and DBS knew or should have known that the
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`earthen material under the Aggregate pile contained hazardous substances.
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`3.
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`Plaintiffs have incurred significant costs as a result of the Collapse.
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`Accordingly, they bring this lawsuit: (i) as to claims brought under state and federal
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`environmental statutes, to recover or obtain contribution toward response costs; (ii)
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`as to the remining claims, to obtain an award of damages; and (iii) as to all claims,
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`to obtain additional relief, such as interest and attorney’s fees, as appropriate under
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`the various Counts.
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`PARTIES
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`4.
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`Revere is a Michigan limited liability company with its principal place
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`of business in North Muskegon, Michigan.
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`5.
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`Erickson’s is a Michigan corporation with its principal place of
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`business in North Muskegon, Michigan.
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`6.
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`Newcorp is a Michigan corporation with its principal place of business
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`in North Muskegon, Michigan.
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`7.
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`8.
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`Revere and Erickson’s are subsidiaries of Newcorp.
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`DBS is a Michigan corporation with its principal place of business in
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`Wayne County, Michigan.
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`9.
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`On information and belief, DBS is a transporter and provider of dry
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`bulk material, including aggregate, by truck and navigable water, including along
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`the Detroit River.
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`JURISDICTION AND VENUE
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`10. Subject matter jurisdiction is proper with respect to Counts VII and
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`VIII, brought under the Comprehensive Environmental Response, Compensation,
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`and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et. seq., pursuant to 28 U.S.C. §
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`1331 and 42 U.S.C. § 9613(b), and with respect to the remaining claims pursuant to
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`28 U.S.C. § 1367.
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`11. Subject matter jurisdiction is also proper pursuant to 28 U.S.C. § 1333,
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`because an integral part of DBS’s use of the Property involved maritime activity,
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`that is, the unloading of Aggregate and other materials from ships in navigable
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`waters. For clarity, Plaintiffs invoke jurisdiction under 28 U.S.C. § 1333 only if and
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`to the extent jurisdiction does not exist on the grounds set forth in ¶ 10.
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`12. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2)
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`because the events giving rise to the claims occurred within this District and the
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`Defendant has its principal place of business in this District. Venue is also proper
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`pursuant to 42 U.S.C. § 9613(b) because the release or damages occurred in this
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`District, and because this is the District in which the Defendant resides, may be
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`found, and has its principal office.
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`13. Personal jurisdiction over the Defendant is proper because the
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`Defendant has its principal place of business in Michigan and availed itself of the
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`privilege of doing business within this State.
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`FACTUAL BACKGROUND
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`The Property
`14. The Property is located at 5851 West Jefferson Avenue, Detroit,
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`Michigan on the south side of West Jefferson Avenue between South Cavalry Street
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`and Junction Street. The Property is located on the Detroit River and includes a
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`commercial dock.
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`15. Revere is the owner of the Property.
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`16. DBS was a lessee of the Property.
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`17. The Property was utilized for industrial purposes from at least 1908
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`until the mid-1980’s. A portion of the Property was developed in the early 1900’s
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`for the Michigan Copper and Brass Company, which later became the Revere
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`Copper and Brass Company.
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`18. Revere Copper and Brass vacated the Property in 1985, and the
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`Property reverted to the City of Detroit in November 1986. All of the former
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`buildings associated with the Property were demolished between 1985 and 1986.
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`19. Revere purchased the Property in 2015 from the City of Detroit.
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`20.
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`In connection with its purchase of the Property, Revere caused a Phase
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`I Environmental Site Assessment to be conducted in accordance with the ASTM
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`Practice 1527-13 standard and the Federal All Appropriate Inquiry Rule under 40
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`CFR 312, and Revere caused to be completed and disclosed a Baseline
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`Environmental Assessment (BEA) in accordance with Part 201 of the Natural
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`Resources and Environmental Protection Act, Public Act 451 of 1994, as amended
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`(NREPA).
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`21. The BEA identified the Property as a “facility” as defined under Part
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`201 of NREPA, indicating that the Property was impacted with hazardous substances
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`in excess of applicable Part 201 criteria including, but not limited to arsenic,
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`cadmium,
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`chromium,
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`copper,
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`lead, mercury,
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`selenium,
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`silver,
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`zinc,
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`tetrachloroethylene, benzene, ethylbenzene, xylene, naphthalene and phenanthrene.
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`22. Pursuant to MCL 324.20116, Revere disclosed to DBS that the Property
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`was a “facility” and that the general nature and extent of known releases thereon are
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`described in the BEA.
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`The Lease
`23. Revere and DBS began discussions regarding DBS’s desire to conduct
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`its business at the Property in or about March 2019.
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`24. DBS agreed to lease the Property from Revere in June 2019 to conduct
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`DBS’s business.
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`25. As an express or implied obligation of the lease, DBS was obligated to,
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`inter alia:
`
`a.
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`b.
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`c.
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`not commit waste;
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`not create a nuisance; and
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`comply with all applicable state, federal, county and municipal
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`laws, ordinances and regulations, including environmental laws
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`(collectively, “Laws”).
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`26. DBS first paid Revere for use of the Property on or about August 1,
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`2019.
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`27. After taking possession of the Property, DBS began unloading on the
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`Property Aggregate from ships, moving and storing the Aggregate on the Property
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`and removing the Aggregate from the Property.
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`The Collapse
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`28. On November 26, 2019, approximately 200 feet of shoreline along the
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`portion of the Property adjacent to the Detroit River collapsed (the “Collapse”).
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`29. The Collapse occurred because DBS overloaded the areas of the
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`Property on which the Aggregate was stored, that is, it stored too much Aggregate
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`too close to the River.
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`30. According
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`to a report (the “PME Report”)
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`issued by PM
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`Environmental, Inc. (“PME”), “[t]he presence of the aggregate stockpile resulted in
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`apparent rotational slope failure that displaced soils downward within and outward
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`from the subject property to an area of the Detroit River immediately east of the
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`former shoreline boundary.” PME Report at 3. A copy of the PME Report is
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`attached to this Complaint as Exhibit A.
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`31. Sampling performed by the U.S. Environmental Protection Agency and
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`PME indicated that as a result of the Collapse, hazardous substances, including but
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`not limited to arsenic, cadmium, chromium, copper, lead, mercury, selenium, silver,
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`zinc,
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`tetrachloroethylene, benzene, ethylbenzene, xylene, naphthalene and
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`phenanthrene, were released at concentrations exceeding Part 201 criteria onto the
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`river bank and into the Detroit River.
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`DBS’s Prior Knowledge
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`32. DBS knew or should have known of the risks posed by the overloading
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`of riverfront docks and storing heavy piles of Aggregates too close to the shoreline,
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`including the risk of collapse and discharge into the Detroit River because, among
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`other things, it has been in the aggregate storage business for multiple years,
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`including along the Detroit River in close proximity to the Property.
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`33. DBS knew or should have known of the presence of hazardous
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`substances at the Property because, among other things, it knew of the BEA and of
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`the historical use of the Property.
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`34. DBS knew or should have known of the City of Detroit permitting
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`requirements for storing large amounts of Aggregate outdoors and along the river
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`front, as it has been in the business for multiple years, has stored bulk material in the
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`city of Detroit previously and, on information and belief, has previously obtained
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`such permits.
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`35. The November 2019 Collapse was not the first of its kind for DBS. On
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`January 28, 2011, a dock owned by U.S. Steel and leased to DBS collapsed under
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`the weight of more than 100,000 tons of road salt, offloaded at the site by DBS for
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`Morton Salt Co. U.S. Steel claimed in its lawsuit against DBS that the salt piles
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`were double the height permitted under DBS’s lease with U.S. Steel.
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`EGLE’s Involvement
`36. On December 6, 2019, following the Collapse, the Michigan
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`Department of Environment, Great Lakes, and Energy (“EGLE”) conducted a site
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`inspection at the Property and in the adjacent waters, including a drone flyover.
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`During the inspection, EGLE staff confirmed that soils, asphalt, concrete, steel, and
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`aggregate had been displaced onto the bottomlands and into the Detroit River.
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`37. After the inspection, EGLE identified several violations of Part 31,
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`Water Resources Protection, of the Natural Resources and Environmental
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`Protection Act (“NREPA”), MCL § 324.3101, et seq.; Part 201, Environmental
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`Remediation, of the NREPA, MCL § 324.20101, et seq.; Part 301, Inland Lakes
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`and Streams, of the NREPA, MCL § 324.30101, et seq.; and the associated
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`administrative rules, including:
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`a.
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`Discharging of a substance that is or may become injurious to entities
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`described in Section 3109(1) of Part 31, MCL § 324.3109(1) into the
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`waters of the state;
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`b.
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`c.
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`Unlawful occupation and filling of floodplain and stream channel;
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`Violation of the due care requirements of Part 201 that apply because
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`of the release of hazardous substances at the Facility and the need to
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`mitigate off-property risks resulting from erosion of surface soils and
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`the property; and
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`d.
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`Filling of Detroit River bottomlands without the benefit of a permit
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`under Part 301.
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`38. On or about December 11, 2019, EGLE issued a Violation Notice and
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`Order to Restore, stating that:
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`The Michigan Department of Environment, Great Lakes, and
`Energy (EGLE) Water Resources Division (WRD) conducted an
`inspection on December 6, 2019 at the above referenced parcel of
`property. The purpose of the inspection was to evaluate the property
`for compliance with Part 31, Water Resources Protection, and Part
`301, Inland Lakes and Streams, of the Natural Resources and
`Environmental Protection Act, 1994 PA 451, as amended (NREPA).
`[]
`At the time of the inspection, the WRD staff observed that a bank
`failure occurred along approximately 200 feet of the property
`shoreline resulting in the discharge of sediment, fill material,
`aggregate and debris to the Detroit River. Please be advised that the
`unauthorized discharge of such material to waters of the State is a
`violation of Part 31 of NREPA.
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`Further, Section 324.30102 of Part 301 prohibits the fill of
`bottomland without first obtaining a permit from EGLE. A review
`of the WRD files indicates that no permits have been issued for this
`activity at the property. Therefore, it appears that this event has
`resulted in a violation of Part 301.
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`The violations identified in this Violation Notice are continuing and
`are violations of Part 31 and Part 301 of the NREPA. This letter is
`being sent to you because you have been identified as the property
`owner responsible for the property and therefore must take
`immediate action to achieve and maintain compliance with Part 31
`and Part 301 of NREPA.
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`In consideration of the requirements of Part 301, the WRD has
`determined that a permit would not have been approved for this
`activity. Therefore, within 15 days of the date of this letter, or a
`mutually agreed upon schedule, you must submit a restoration plan
`to bring the property into compliance with the requirements of Part
`301.
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`39. On December 11, 2019, EGLE issued Compliance Communications to
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`both Revere and DBS as the owner and operator of the Property, respectively, stating
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`that EGLE staff “confirmed that contaminated soils, asphalt and aggregate were
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`observed to have entered the Detroit River” and “hazardous substances are present
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`in soils at the Property at levels that may pose a potential unacceptable exposure via
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`contact with those soils…[,]” and EGLE notified Revere as the owner and DBS as
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`the operator of the Property that, pursuant to Part 201, Rule 1013(1)(b), Revere and
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`DBS were “required to undertake response activities as necessary to mitigate off
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`property risks resulting from erosion of surface soils at the property”.
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`40. Revere retained PME to assist in addressing EGLE’s requirements.
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`41. On January 24, 2020, PME submitted an interim response plan to EGLE
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`on behalf of Revere, outlining the actions being taken to evaluate geotechnical
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`conditions, control erosion and turbidity, and characterize materials in preparation
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`of submitting a restoration plan.
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`42. On March 30, 2020, PME submitted a Restoration Plan to EGLE on
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`behalf of Revere.
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`43. On April 15, 2020, EGLE issued an Enforcement Notice to Revere,
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`offering to resolve the alleged violations through an Administrative Consent Order
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`(“ACO”).
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`44. On August 17, 2020, Revere entered into an ACO with EGLE. A copy
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`of the ACO is attached to this Complaint as Exhibit B.
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`45.
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`In the ACO, EGLE alleged that as a result of DBS’s storage of
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`Aggregate, Revere was in violation of MCL § 324.3101, et seq., MCL § 324.20101,
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`et seq., and MCL § 324.30101, et seq.
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`46. The ACO required Revere to take multiple actions to remediate the
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`issues caused by the Collapse. See ACO §§ 3.1-3.10.
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`47. The ACO required Revere to pay several penalties, including $15,000
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`“as partial compensation for the cost of investigations and enforcement activities,”
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`(ACO § 9.1), $45,000 “for the violations specified in Section II of [the ACO]” (ACO
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`§ 9.2), and $5,000 as a “stipulated penalty” (ACO § 9.3).
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`Response Activities
`48. As a result of the Collapse, the construction of a new seawall along the
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`entire eastern boundary of the Property was required to contain and stabilize the
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`shoreline and prevent further releases into the river.
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`49. Response activities also included the following activities:
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`a.
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`Preparation and submittal of permits for construction and failure
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`material/sediments;
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`Re-sampling and delineation of activities;
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`Installation of construction-phase erosion and turbidity controls;
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`b.
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`c.
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`d.
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`Removal of debris immediately east of the existing dock to
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`facilitate sea wall construction;
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`e.
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`Installation (driven) of new seal wall pipe piles and sheet pile
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`panels immediately east of the current dock and installation of
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`battered piles further west;
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`f.
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`Removal of the current dock structure in combination with
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`installation of associated tiebacks and dead-men, backfilling, and
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`concrete cap installation;
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`g.
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`Removal and proper disposal of riverbank failure material and
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`sediment to a depth of 27-feet below river surface;
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`h.
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`Reporting and
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`regulatory submittals,
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`including as-built
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`documentation for sea wall construction and riverbank failure
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`material and sediment removal/disposal activities;
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`Preparation of a post-construction Documentation of Due Care
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`Compliance report; and
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`Restoration of the Great Lakes Water Authority’s outfall located
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`i.
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`j.
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`on the Property.
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`50. Plaintiffs have incurred significant costs in connection with the
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`response activities, which costs were reasonably incurred under the circumstances
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`and are necessary costs of response consistent with the National Contingency Plan.
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`City of Detroit Settlement
`51. The City of Detroit sued Revere and DBS in the Circuit Court of Wayne
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`County because of the Collapse (the “City of Detroit Case”). The City of Detroit
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`Case was City of Detroit v. 5851 W. Jefferson Detroit, MI 48209, et. al, No. 20-
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`001163-CH (Wayne Cty. Cir. Ct.).
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`52. On May 7, 2020 the court in that case accepted a settlement between
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`the City and Revere (the “Settlement”).
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`53. The Settlement required Revere to take multiple actions, including:
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`a.
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`Submitting a building permit application for use of the subject
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`property for outdoor storage;
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`b.
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`Submitting a certificate of operation for bulk material storage
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`application;
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`c.
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`Submitting a building permit application for the existing asphalt
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`pad;
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`Obtaining a geotechnical report;
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`Submitting a copy of the bank restoration plan;
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`Submitting a building permit application for bank restoration;
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`Completing bank restoration; and
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`d.
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`e.
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`f.
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`g.
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`h. Making payment to the City of Detroit in the amount of $63,000.
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`54. On or about September 7, 2020, the City and DBS entered into a
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`stipulated order of dismissal for the City of Detroit Case.
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`55. DBS was required to pay $11,570 to the City, and the City retained
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`DBS’s $3,430 bond.
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`CLAIMS FOR RELIEF
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`COUNT I — Breach of Lease (Revere only)
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`56. Revere incorporates paragraphs 1-55 by reference.
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`57. DBS breached its agreement with Revere by, among other things,
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`committing waste, creating a nuisance and not complying with applicable Laws.
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`58. Revere has been injured by the breach by, inter alia, incurring
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`substantial costs to remediate and repair the damage caused by DBS and by being
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`deprived of the beneficial use of the Property.
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`WHEREFORE, Revere asks that this Court:
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`A. Award Revere all damages it has suffered on account of the breach,
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`together with interest; and
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`B. Award Revere such other and further relief as this Court finds just.
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`COUNT II — Nuisance (Revere only)
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`59. Revere incorporates paragraphs 1-55 by reference.
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`60. By causing the Collapse, DBS interfered with Revere’s use and
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`enjoyment of the Property and created a nuisance.
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`61. The Collapse caused significant harm to Revere.
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`62. DBS knew or must have known that by overloading the dock, the
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`Collapse was substantially certain.
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`63.
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`In the alternative, DBS caused the Collapse negligently or recklessly.
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`64. The Collapse was a public nuisance because, inter alia, it created a risk
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`of harm to the general public because of the release of contaminants into the Detroit
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`River, in violation of federal and state environmental laws, including, but not limited
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`to, MCL § 324.3109(1), and therefore is prima facie evidence of a public nuisance
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`under MCL § 324.3109(6).
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`65. Although a public nuisance, Revere suffered a type of harm different
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`and greater than the general public.
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`66. The Collapse was also a private nuisance.
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`67. The Collapse was a nuisance per se, because the discharge of
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`contaminants into the Detroit River is a nuisance at all times and under all
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`circumstances and because DBS operated its business without obtaining the permits
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`required under municipal law.
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`68.
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`In the alternative, the Collapse was a nuisance in fact, because the
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`natural tendency of DBS’s actions was to create danger and inflict injury on the
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`Property.
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`69. Revere was damaged by DBS’s wrongful conduct.
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`WHEREFORE, Revere asks that this Court:
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`A. Award Revere all damages it has suffered on account of the nuisance,
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`together with interest; and
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`B. Award Revere such other and further relief as this Court finds just.
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`COUNT III — Waste (Common Law) (Revere only)
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`70. Revere incorporates paragraphs 1-55 by reference.
`
`71. DBS’s conduct was unreasonable and resulted in physical damage to
`
`the Property and a substantial diminution in its value.
`
`72. DBS committed waste to the Property.
`
`73. Revere was damaged by DBS’s waste.
`
`WHEREFORE, Revere asks that this Court:
`
`A. Award Revere all damages it has suffered on account of the waste,
`
`together with interest; and
`
`B. Award Revere such other and further relief as this Court finds just.
`
`COUNT IV — Statutory Waste (MCL § 600.2919) (Revere only)
`74.
` Revere incorporates paragraphs 1-55 by reference.
`
`75.
`
` DBS is a tenant for years within the meaning of MCL § 600.2919(2).
`
`76. DBS’s conduct was unreasonable and resulted in physical damage to
`
`the Property and a substantial diminution in its value.
`
`77. DBS committed waste to the Property by causing the Collapse.
`
`
`
`17
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`
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`Case 2:22-cv-10619-MFL-DRG ECF No. 1, PageID.18 Filed 03/23/22 Page 18 of 24
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`78. Revere has been damaged by DBS’s waste.
`
`79. Pursuant to MCL § 600.2919, DBS is liable for double damages.
`
`WHEREFORE, Revere asks that this Court:
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`A. Award Revere two times the damages it has suffered on account of the
`
`nuisance, together with interest; and
`
`B. Award Revere such other and further relief as this Court finds just.
`
`COUNT V — Negligence (Revere only)
`80. Revere incorporates paragraphs 1-55 by reference.
`
`81. DBS owed Revere a duty of care to load, unload and store the
`
`Aggregate so as to not commit waste, cause a nuisance or fail to comply with
`
`applicable Laws.
`
`82. DBS breached its duty of care.
`
`83. Revere has been damaged by DBS’s breach.
`
`WHEREFORE, Revere asks that this Court:
`
`A. Award Revere all damages it has suffered on account of the negligence,
`
`together with interest; and
`
`B. Award Revere such other and further relief as this Court finds just.
`
`COUNT VI — Cost Recovery under Part 201 of NREPA (MCL § 324.20126a)
`(All Plaintiffs)
`84. Plaintiffs incorporate paragraphs 1-55 by reference.
`
`85. Plaintiffs bring this Count for cost recovery under Part 201 of NREPA.
`
`
`
`18
`
`
`
`Case 2:22-cv-10619-MFL-DRG ECF No. 1, PageID.19 Filed 03/23/22 Page 19 of 24
`
`
`86. Counts VI and VII are pled in the alternative.
`
`87.
`
`In this Count, all terms in quotation marks have the meaning set forth
`
`in MCL § 324.20101, unless otherwise indicated.
`
`88. DBS is an “operator” of the Property and was an “operator” at the time
`
`of the “release” of “hazardous substances” at and from the Property.
`
`89. The Property is a “facility.”
`
`90. DBS’s activities causing the Collapse resulted in a “release” of
`
`“hazardous substances” in excess of applicable Part 201 cleanup criteria along the
`
`riverbank and into the Detroit River.
`
`91. As a result of the Collapse, Plaintiffs have undertaken “response
`
`activit(ies)” and have incurred “response activity costs” reasonably necessary under
`
`the circumstances.
`
`92. DBS caused “discharge” of “hazardous substances” at and from the
`
`“facility” and is a liable party under MCL § 324.20126.
`
`93. Plaintiffs are entitled to recover from DBS the “response activity costs”
`
`incurred as a result of DBS’s “release” of “hazardous substances” pursuant to MCL
`
`§ 324.20126a.
`
`94. An actual controversy exists between Plaintiffs and DBS as to
`
`Plaintiffs’ entitlement to recovery of “response activity costs” from DBS.
`
`WHEREFORE, Plaintiffs ask that this Court:
`
`
`
`19
`
`
`
`Case 2:22-cv-10619-MFL-DRG ECF No. 1, PageID.20 Filed 03/23/22 Page 20 of 24
`
`
`A. Award Plaintiffs all “response activity costs” incurred by them,
`
`together with interest; and
`
`B. Award Plaintiffs such other and further relief as this Court finds just.
`
`COUNT VII — Contribution under Part 201 of NREPA (MCL § 324.20129)
`(All Plaintiffs)
`95. Plaintiffs incorporate paragraphs 1-55 by reference.
`
`96. Plaintiffs incorporate paragraphs 85-92 by reference.
`
`97.
`
`If Plaintiffs bear any responsibility for an activity causing the Collapse,
`
`resulting in a “release” of “hazardous substances” at the Property, they acted
`
`independently of DBS and there is a reasonable basis for allocating responsibility.
`
`98. DBS is obligated to contribute toward the “response activity costs”
`
`incurred by Plaintiffs.
`
`99. An actual controversy exists between Plaintiffs and DBS as to the
`
`allocation of responsibility for the “response activity costs.”
`
`WHEREFORE, Plaintiffs ask that this Court:
`
`A. Award Plaintiffs DBS’s allocable share of all “response activity costs”
`
`incurred by Plaintiffs, together with interest; and
`
`B. Award Plaintiffs such other and further relief as this Court finds just.
`
`COUNT VIII — Cost Recovery under Part 201 of NREPA
`(MCL § 324.20107a) (All Plaintiffs)
`100. Plaintiffs incorporate paragraphs 1-55 by reference.
`
`
`
`20
`
`
`
`Case 2:22-cv-10619-MFL-DRG ECF No. 1, PageID.21 Filed 03/23/22 Page 21 of 24
`
`
`101. Plaintiffs incorporate paragraphs 85-92 by reference.
`
`102. If DBS is not otherwise liable for the “environmental contamination,”
`
`the Collapse caused an “exacerbation” of the existing contamination.
`
`103. DBS failed to undertake measures to prevent the “exacerbation.”
`
`104. DBS failed to exercise due care by undertaking response activity
`
`necessary to mitigate unacceptable exposure to hazardous substances.
`
`105. Plaintiffs have incurred “response activity costs” as a result of DBS’s
`
`failure to comply with its obligations under Section 20107a of NREPA.
`
`106. DBS is liable for Plaintiffs’ “response activity costs” attributable to any
`
`exacerbation.
`
`WHEREFORE, Plaintiffs ask that this Court:
`
`A. Award Plaintiffs DBS’s allocable share of all “response activity costs”
`
`incurred by Plaintiffs, together with interest; and
`
`B. Award Plaintiffs such other and further relief as this Court finds just.
`
`COUNT IX —Cost Recovery under CERCLA
`(42 U.S.C. § 9607) (All Plaintiffs)
`107. Plaintiffs incorporate paragraphs 1-55 by reference.
`
`108. Plaintiffs bring this Count pursuant to CERCLA.
`
`109. In this Count, all terms in quotation marks have the meaning set forth
`
`in 42 U.S.C. § 9601, unless otherwise indicated.
`
`
`
`21
`
`
`
`Case 2:22-cv-10619-MFL-DRG ECF No. 1, PageID.22 Filed 03/23/22 Page 22 of 24
`
`
`110. DBS was at the time of the “disposal” of “hazardous substances” at the
`
`Property and thereafter, an “operator” of the Property.
`
`111. The Property is a “facility.” DBS knew or had reason to know that it
`
`was a “facility.”
`
`112. DBS’s activities causing the Collapse resulted in the “disposal” of
`
`“hazardous substances” into the “environment.”
`
`113. DBS is responsible for the activity causing the “disposal” of “hazardous
`
`substances” at and from the Property and is a liable person under section 107(a) of
`
`CERCLA.
`
`114. As a result of the Collapse and resulting disposal of hazardous
`
`substances at the Property, Plaintiffs have undertaken “response activity(ies)” and
`
`have incurred necessary costs of “response”.
`
`115. The “response” costs incurred by Plaintiffs were consistent with
`
`the National Contingency Plan.
`
`116. The “release” and/or “disposal” of “hazardous substances” were caused
`
`by DBS’s willful misconduct or willful negligence within the privity or knowledge
`
`of DBS.
`
`117. Pursuant to 42 U.S.C. § 9607, DBS is liable for Plaintiffs’ full and total
`
`cost of “response” and “damages.”
`
`WHEREFORE, Plaintiffs ask that this Court:
`
`
`
`22
`
`
`
`Case 2:22-cv-10619-MFL-DRG ECF No. 1, PageID.23 Filed 03/23/22 Page 23 of 24
`
`
`A. Award Plaintiffs all response activity costs, removal actions and
`
`remediation costs incurred by them, together with interest; and
`
`B. Award Plaintiffs such other and further relief as this Court finds just.
`
`COUNT X — Contribution under CERCLA
`(42 U.S.C. § 9613) (All Plaintiffs)
`118. Plaintiffs incorporate paragraphs 1-55 by reference.
`
`119. Plaintiffs incorporate paragraphs 109-116 by reference.
`
`120. DBS is a liable person under 42 U.S.C. § 9607(a).
`
`121. Revere has resolved its liability to the State of Michigan in an
`
`administratively approved settlement.
`
`122. DBS is liable for contribution toward “response costs” incurred
`
`pursuant to 42 U.S.C. § 9613(f)(3)(B).
`
`WHEREFORE, Plaintiffs ask that this Court:
`
`A. Award Plaintiffs DBS’s allocable share of all “response costs” incurred
`
`by Plaintiffs, together with interest; and
`
`B. Award Plaintiffs such other and further relief as this Court finds just.
`
`COUNT XI —Contribution (MCL § 600.2925a) (All Plaintiffs)
`
`123. Plaintiffs incorporate paragraphs 1-55 by reference.
`
`124. If Revere bears any responsibility for the Collapse, DBS is jointly and
`
`severally liable.
`
`125. Plaintiffs have paid more than their pro rata share of costs.
`23
`
`
`
`
`
`Case 2:22-cv-10619-MFL-DRG ECF No. 1, PageID.24 Filed 03/23/22 Page 24 of 24
`
`
`126. Plaintiffs are entitled to contribution from DBS.
`
`WHEREFORE, Plaintiffs ask that this Court:
`
`A. Award Plaintiffs DBS’s allocable share of all costs incurred by
`
`Plaintiffs, together with interest; and
`
`B. Award Plaintiffs such other and further relief as this Court finds just.
`
`JURY DEMAND
`
`Plaintiffs respectfully request a trial by jury for all claims so triable.
`
`Respectfully submitted,
`
`BUTZEL LONG, P.C.
`
`/s/: Sheldon H. Klein
`Sheldon H. Klein (P41062)
`David J. DeVine (P70012)
`201 W. Big Beaver
`Suite 1200
`Troy, MI 48084
`Tel: (248) 258-1616
`Fax: (248) 258-1439
`klein@butzel.com
`devine@butzel.com
`Attorneys for Plaintiffs
`
`
`
`
`Dated: March 23, 2022
`
`IBLOOMFIELD\000146115\0007\3248251-3/23/22
`
`
`
`24
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`
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