Ten years after purchasing land in Detroit from the Michigan State Transportation Commission, Dietrich Bergmann sued that Commission and the Michigan Department of Transportation (collectively the “Department”) under CERCLA, seeking costs for investigation and remediation of his property.  The parties settled their dispute resulting in the district court’s entering a consent decree in 1991.  The decree obligated the Department to remediate Bergmann’s property in approximately 4 years .  If the Department didn’t in good faith attempt to meet the remediation deadline, then it was required to make liquidated damage payments to Bergmann of $2,000 at the beginning of each month that the remediation was incomplete.

The Department didn’t remediate and didn’t pay.  For reasons not identified in the Sixth Circuit’s opinion in Bergmann v. Michigan State Trans. Comm., et al., Nos. 10-17-8/1770 (6^th Cir., Dec. 15, 2011) , Bergmann waited many years, until 2009, to move the district court to enforce the consent decree it had entered in 1991.   Although the lower court concluded that the remediation obligation was extinguished by the passage of the 10-year statute of limitations period, it also found that each time the Department skipped its monthly $2,000 payment, the limitations period for the obligation started anew.  Bergmann was accordingly awarded damages for just over ten years of missed payments.

Neither party was satisfied with the district court’s application  of the statute of limitations; and apparently neither was the Sixth Circuit.   On appeal, the Sixth Circuit quoted  Judge Posner’s explanation that “from the standpoint of interpretation a consent decree is a contract, but from the standpoint of remedy it is an equitable decree.”  Because Bergmann’s enforcement action sought an equitable remedy, his request was subject to the equitable doctrine of laches, not the statutory limitations period.  Without hinting at which party the Court believed the equities favored, the Circuit Court remanded with direction to the lower court to apply the laches doctrine to Bergmann’s motion to enforce the consent decree.

We wonder, then, whether the district court’s application of the equitable doctrine of laches may result in the Department’s having to both remediate and pay $2,000/month for a period longer than ten years, or may result in Bergmann’s receiving no relief at all?  Maybe neither party will want to take that risk and they’ll simply settle along the lines of the district court’s pre-appeal award.

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