ELR Citation: ELR 21403
No(s). CS-94-178 (E.D. Wash. Oct 10, 1995)

The court holds that the Flood Control Act (FCA) bars Federal Tort Claims Act (FTCA) claims against the U.S. Army Corps of Engineers (the Corps) to recover costs plaintiffs incurred cleaning up petroleum contamination underlying the Corps' McNary Levees System of the McNary Lock and Dam Project on the Columbia River, but does not bar claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that FCA §702c bars plaintiffs' claims under the FTCA. The McNary Lock and Dam Project is a flood-control project authorized by Congress, and the damage caused by releases of hazardous substances is related to the use of the levee. Because the Corps' action in spreading the contamination is not wholly unrelated to a federal flood-control project, §702c immunity attaches. The court further holds that the FTCA claims must also be dismissed because plaintiffs failed to file their administrative claim with the Corps before initiating suit. The court next holds that the FCA does not bar plaintiffs' claims under CERCLA. CERCLA states that the federal government shall be liable to the same extent as any nongovernmental entity, and if Congress intended to include §702c immunity in CERCLA, it would have done so. Moreover, unlike the FTCA, CERCLA contains no list distinguishing prior immunity laws that it revoked from those it did not.

[Another decision in this litigation is published at 26 ELR 21105.]

Counsel for Plaintiffs
Rodney L. Brown Jr.
Martin & Brown
1191 Second Ave., 22d Fl., Seattle WA 98101
(206) 292-6300

Counsel for Defendants
Peter D. Byrnes
Byrnes & Keller
1000 Second Ave., 38th Fl., Seattle WA 98104
(206) 622-2000