Site Owner Can’t Recover Cleanup Damages Under Access Law

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By Peter Hayes

The owner of contaminated site can’t recover damages from a prior owner under the Michigan site access law for a tardy cleanup, a federal appeals court ruled June 19 ( Newell Brands, Inc. v. Bosgraaf , 6th Cir., No. 16-2331, unpublished 6/19/17 ).

The owner’s claim under the access law is barred because it seeks compensation for ongoing contamination, not for damage caused by the court’s grant of access to allow the prior owner to conduct a cleanup, the U.S. Court of Appeals for the Sixth Circuit said.

The prior owner, Newell Brands Inc. first filed suit, alleging Kirsch Lofts Inc. was denying access to the site.

Kirsch filed a counterclaim, seeking damages from Newell for allegedly dragging its feet in conducting the cleanup.

The Sixth Circuit affirmed dismissal of Kirsch’s claims.

Kirsch’s claimed damages for loss of tax credits due to its inability to develop the property fail because they aren't related to the court’s grant of access, the court said.

Judge Raymond M. Kethledge wrote the opinion, joined by Judges Deborah L. Cook and Bernice B. Donald.

Schiff Hardin LLP represented Newell Brands.

Bila & Associates PLLC and Scot A. Reynolds PLC represented Kirsch Lofts.

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