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Limits to CERCLA'S Owner/Operator Liability

By James A. Vroman

The United States District Court for the Western District of Washington has ruled that a party cannot be liable under CERCLA as an "owner/operator" for the remediation of impacted soil and water if the impacted soil and water is not located within the party's facility, and is entirely outside of the property limits of the party's facility, even though the contaminants that impacted the soil and groundwater may have originated at the party's facility and migrated off-site to impact down gradient locations. See, United States v. Washington State Dept. of Transportation, Case NO. 08-5722RJB.

The United States brought a CERCLA action against the Washington State Department of Transportation (the "DOT") contending that coal tar from the DOT's Tacoma Spur Property had migrated and contaminated the Thea Foss and Wheeler Osgood Waterways (the "Waterways").  The United States sought to impose CERCLA liability on the DOT as an owner/operator and compel the DOT to remediate the Waterways.  Although the DOT did not own or operate the Waterways, the Tacoma Spur Property and the Waterways were both located within the large Commencement Bay/Nearshore Tidelands Superfund Site.  The United States contended that the entire Superfund Site was one "facility" and, therefore, the DOT was an "owner" of the "facility," as that term is defined in CERCLA.

The Court disagreed with this contention.  It found that the Superfund Site was comprised of a number of different properties each with a different owner.  The different owners had no common purpose and did not conduct common activities on their properties.  Therefore, the Court could not accept the United States' argument that the entire Site was one facility.  Moreover, the Court concluded that the Waterways and the Tacoma Spur Property "are reasonably divided into multiple parts or functional units."  Accordingly, the Court found that they were separate "facilities" under CERCLA and the DOT was not the owner/operator of the Waterways facility and could not be liable under CERCLA for the remediation of the Waterways as an "owner/operator" Potentially Responsible Party ("PRP"), even if the coal tar impacting the Waterways had migrated from the Tacoma Spur Property.