How is the term 'due care' defined for purposes of the 42 U.S.C. §9607(b)(3) 'third-party defense' in relation to 'reasonable steps' in the substantially similar 'innocent contiguous landowner defense' of 42 U.S.C. §9607(q)

QUESTIONS PRESENTED The questions for this Court are: 1. How is the term “due care” defined for purposes of the 42 U.S.C. §9607(b)(3) “third-party defense” in relation to “reasonable steps” in the substantially similar “innocent contiguous landowner defense” of 42 U.S.C. §9607(q). In other words, can two substantially similar statutory defenses have widely disparate standards of care? 2. Is an intragovernmental real estate transaction strictly for budgetary purposes a transaction contemplated by the 42 U.S.C. §9607(q) “innocent contiguous landowner defense” resulting in the defense being lost? 3. How is the “due care” standard defined for purposes of a 42 U.S.C. §9613(f) equitable allocation under the Gore factors in light of the cross-referenced due care standards set forth in 42 U.S.C. §9607(b)(3) and 42 U.S.C. §9607(q) statutory defenses? 4. Should the standards of care in the 42 U.S.C. §9607(q) “third-party defense,” the 42 U.S.C. §9607(q) “innocent contiguous landowner defense,” and the 42 U.S.C. §9613(f) equitable allocation through the Gore factors, be uniform, as all three concepts are substantially similar in scope and intended result? ii QUESTIONS PRESENTED—Continued Gould owned property directly adjacent to property owned by LCRC where it manufactured pistons and connecting rods for small engines using Trichloroethylene (“TCE”) as a degreaser. Gould systematically dumped an enormous quantity of TCE on the ground in locations close to the LCRC property line over the course of fifteen (15) years during the 1960s and 1970s. In 2017, after nearly three decades of scientific investigation and analysis—none of which ever implicated LCRC as a source of contamination—the Michigan Department of Environmental Quality (““MDEQ,” now known as the Department of Environment, Great Lakes, and Energy (““EGLE”)), determined that there was no evidence indicating a release on the LCRC property. The district court came to the same conclusion, which was affirmed by the Sixth Circuit. The specific conclusion was that: [T]here is no evidence demonstrating that there were any deposits of TCE onto the soils on the LCRC Property. * * * [The] evidence is sufficient to establish that no disposal of TCE occurred on the LCRC Property. . . . Thus, the evidence demonstrates that Gould Inc., and not LCRC, generated the TCE contamination, which migrated onto the neighboring properties, including the LCRC Property. (R. 265, PageID 83258). ili QUESTIONS PRESENTED—Continued Despite concluding that LCRC was 100% innocent of causing the contamination the district court, as affirmed by the Sixth Circuit, simultaneously concluded that LCRC was 5% responsible for past and future costs of remediation for failure to engage in sufficient groundwater investigation, despite spending approximately $1.2 million in public funds on scientific investigation and analysis. This conclusion was reached in clear defiance of the evidence and the law, which indicated respectively that the MDEQ investigation was an improperly overbroad fishing expedition and that no groundwater investigation or remediation systems need to be utilized by innocent landowners contaminated through passive groundwater migration.