ELR Citation: ELR 21452
No(s). C88-217TB (W.D. Wash. Apr 12, 1990)

The court holds that a third-party defendant in an action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for recovery of cleanup costs at the B & L Landfill in Milton, Washington, is not entitled to summary judgment. The parties do not contest that the B & L Landfill is a facility containing hazardous substances, that hazardous substances were released from the site, and that response costs have been incurred there. The parties do contest whether shot deposited at the site constitutes a hazardous substance, whether a release occurred at the site, and whether the defendant caused response costs to incur. The court holds that byproduct materials, or shot, discarded at the site by the third-party defendant, USG Interiors, Inc. (USGI), is a hazardous substance as defined by CERCLA. The shot contains some hazardous material, and CERCLA does not specify minimum concentrations for establishing whether a substance is hazardous. The court further holds that a release, as defined by CERCLA, occurred at the site. The Washington Department of Ecology found that a hazardous substance was released there, and CERCLA does not specify minimum amounts for establishing whether a release has occurred. Defendant has provided evidence that USGI's shot found at the site may have exceeded the concentration levels requiring cleanup under the Safe Drinking Water Act, the Federal Water Pollution Control Act, and, possibly, state law. The court holds, however, that one of the parties potentially responsible for CERCLA response costs at the site has raised the factual question whether USGI caused the incurrence of response costs. Finally, the court holds that USGI is not entitled to the third-party defense provided by CERCLA. USGI deposited its shot at the site and that may have contributed to contamination there.

[A related opinion is published at 20 ELR 21079.]

Counsel for Plaintiffs
James R. Verellen
Kane, Vandeberg, Hartinger & Walker
First Interstate Plaza, Ste. 1900, Tacoma WA 98402-4391
(206) 383-3791

Jeffrey W. Leppo
Bogle & Gates
Two Union Sq., 601 Union St., Seattle WA 98101-2322
(206) 682-5151

Counsel for Defendants
Michael R. Thorp, Peter A. Danelo
Heller, Ehrman, White & McAuliffe
6100 Columbia Ctr., 701 Fifth Ave., Seattle WA 98104-7011
(206) 447-0900