ELR Citation: ELR 20855
No(s). s. C89-214M et al (W.D. Wash. Jan 10, 1991)

The court rules that the transporter defendants in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) action are subject to transporter liability under §107(a)(4) only when they select the disposal site for the hazardous waste transported. The generator defendants were named potentially responsible parties (PRPs) at the Western Processing site in Washington and cross-claimed against several transporters as third-party defendants. The transporter defendants then moved for summary judgment. The court first finds that although the language of §107(a)(4) is somewhat ambiguous as to how a transporter incurs liability, the legislative history of CERCLA provides that selection of the disposal destination by the transporter is necessary before liability attaches. Further, this limitation on transporter liability is a policy matter for the Environmental Protection Agency, which will not send notice letters or bring enforcement actions until is determined that the transporter selected the disposal or treatment facility or other site. The court next holds that §107(a)(3), which makes generators of waste or those who "arranged" for disposal liable, does not apply to transporters in determining PRPs under CERCLA. The court notes that no case law supports including transporters as those who "arranged" for disposal under §107(a)(3). The court holds that the third-party plaintiffs' interpretation of the "generator" liability provision is merciless in view of the express transporter liability provisions in §107(a)(4). The court next rejects the transporter defendants' attempt to raise a "common carrier" defense in support of their motion for summary judgment. Although common carriers cannot discriminate against customers or refuse to accept commodities that may be dangerous for transport, §107(b) precludes a common carrier defense. Finally, the court holds that under Washington's Model Toxics Control Act, genuine issues of material fact exist as to who selected the Western Processing site, making summary judgment premature.

[Prior decisions in this litigation are published at 20 ELR 20986 and 20990.]

Counsel for Plaintiffs
Susan Barnes
Office of the U.S. Attorney
3600 Sea-First Plaza Bldg., 800 Fifth Ave., Seattle WA 98104
(206) 442-7970

David W. Zugschwerdt
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
William A. Gould
Perkins Coie
1201 Third Ave., 40th Fl., Seattle WA 98101-3099
(206) 583-8888