ELR Citation: ELR 21089
No(s). s. C89-214M et al (W.D. Wash. Apr 3, 1991)

The court holds that §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not waive the Environmental Protection Agency's (EPA's) sovereign immunity from contribution claims by responsible parties, based on EPA's regulatory activities at a Superfund site. Several responsible parties at the site counterclaimed for contribution from EPA, alleging that the Agency's activities in closing and stabilizing the site were negligent, causing significant contamination and driving up cleanup costs.

The court first holds that EPA's regulatory activities at the site did not effect a waiver of the federal government's sovereign immunity. Congress rejected the idea that EPA, in carrying out its duties under CERCLA, would assume the risk of becoming a liable party as an "owner/operator" under §107. Moreover, a waiver of sovereign immunity cannot be implied. Concerns about the effectiveness of EPA's remedial work should rather be addressed as part of a determination for consistency with the National Contingency Plan. Further, limited defenses are provided in CERCLA, and it would make no sense to provide an EPA negligence defense to shift the cleanup-cost burden in contribution/allocation litigation.

The court next holds that, although case law exists for the proposition that a party should bear the responsibility for pollution that results when it assumes control of an activity and then fails to perform, the responsible parties have failed to state a claim sufficient to be granted relief. First, CERCLA was designed to compel commercial concerns to internalize the costs of waste disposal, with the United States contributing its share when it acts analogous to a business concern. That does not mean that Congress intended to shift liability to the taxpayers when EPA's regulatory efforts are less than successful. Second, even if EPA did not enforce the interim status performance standards at the site when it had the capacity to do so, CERCLA does not provide for contribution based on negligence or misfeasance. EPA's activities have been exclusively regulatory and remedial.

[Prior decisions in this litigation are published at 20 ELR 20986 and 20990, and 21 ELR 20855 and 20859.]

Counsel for Plaintiff
Susan Barnes
Office of the U.S. Attorney
3600 Sea-First Plaza Bldg., 800 Fifth Ave., Seattle WA 98104
(206) 442-7970
David Zugschwerdt
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
William A. Gould
Perkins Coie
1201 Third Ave., 40th Fl., Seattle WA 98104-3099
(206) 583-8888