ELR Citation: ELR 21047
No(s). C88-654-FVS (E.D. Wash. Feb 26, 1993)

The court holds that a lessee of land adjacent to a site where a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cleanup was proceeding, could be liable in a CERCLA cost recovery action for having arranged for the disposal of hazardous materials, and could be held liable for the costs incurred in responding to the threatened release from its facility. The lessee ran a fruit drenching operation from which contaminated drenching liquid allegedly escaped and flowed toward the adjacent cleanup site that is the focus of this action. The court, in denying the lessee's summary judgment motion, holds that the lessee could be found liable for having arranged for the disposal of hazardous materials. A witness' opinion that the drenching solution contained hazardous pesticide residue has an adequate foundation and can be considered in opposition to the lessee's summary judgment motion. The court holds that the drenching operation constitutes a separate CERCLA facility, because the materials could have flowed from that facility to the cleanup site, a facility itself. Further, the court holds that there is sufficient evidence to raise a genuine issue of material fact regarding the release of a hazardous substance from the lessee's facility. A reasonable jury could find that at least small quantities of pesticide residue were rinsed off by the drenching solution, some of which escaped carrying pesticide residue.

Addressing the lessee's liability for costs incurred in responding to the threatened release from lessee's facility, the court holds that claiming contamination of the facility at the time of the lessee's acquisition is not a defense to the lessee's liability for cleanup costs in view of the lessee's role in dispersing contaminated materials at the facility. CERCLA does not require a determination of migration from the leasehold to the site, because CERCLA liability does not require proof of proximate cause. Moreover, it is inconsequential that the lessee does not own the property. The lessee had authority to control the handling and disposal of hazardous substances, and a reasonable jury could find that the lessee instructed employees to disburse contaminated materials at the facility.

Counsel for Plaintiff
Thomas F. Kingen, Paul J. Lawrence, Craig S. Trueblood
Preston, Thorgrimson, Shidler, Gates & Ellis
1400 Seafirst Financial Ctr., W. 601 Riverside Ave., Spokane WA 99201
(509) 624-2100

Counsel for Defendants
Russell C. Love
Thorsrud, Cane & Paulich
1325 Puget Sound Plaza, Ste. 1350, Seattle WA 98101
(206) 386-7755