ELR Citation: 41 ELR 20255
No(s). 39699-8-II (Wash. Ct. App. Jul 19, 2011)

A Washington appellate court affirmed a lower court decision holding the state transportation agency liable to two utilities for contribution costs incurred at the Thea Foss Waterway, a Superfund site, under the state's Model Toxics Control Act (MTCA). The agency argued that the lower court erred in concluding that it was liable as an arranger because the utilities failed to establish that the agency "intended" to dispose of hazardous substances at the site. But arranger liability under the MTCA does not include an intent element. Although the U.S. Supreme Court's decision in Burlington Northern & Santa Fe Railroad v. United States, 173 L. Ed. 2d 812, 39 ELR 20098 (2009), requires an intent element for "arranger" liability under CERCLA, Washington State courts have interpreted "arranger" liability under the MTCA not to require this element. The Supreme Court's interpretation of CERCLA does not trump the state courts' interpretation of Washington State's comparable act. Nor did the lower court abuse its discretion in its allocation of contribution costs.