ELR Citation: ELR 20990
No(s). C89-214M (W.D. Wash. Apr 3, 1990)

The court holds a defendant jointly and severally liable for response costs at the Western Processing site under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 because the defendant was responsible for some arsenic and the sources of arsenic at the site are indivisible. Section 107 imposes liability for actual or threatened releases of a hazardous substance from a facility causing the government to incur response costs. The court holds that the §107(b) third-party conduct defense fails because the defendant did not prove that all releases of arsenic were caused by a third party. Defendant claims that all its waste was removed from the site, but waste traceable to defendant still exists at the site. The court holds that the focus of the issue of joint and several liability is whether environmental harm occurred and whether the harm is indivisible among defendants. Therefore, equitable factors, relevant in contribution and allocation actions, are not considered here. The court holds that the unclean hands defense does not apply against the government because it is inconsistent with CERCLA, and equitable defenses cannot apply against the government acting in its sovereign capacity to assert public rights.

Counsel for Plaintiffs
David Zugschwerdt
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-4548

Counsel for Defendants
William Gould
Perkins & Coie
1201 Third Ave., Ste. 4000, Seattle WA 98101-3099
(206) 583-8888