ELR Citation: ELR 20879
No(s). s. 93-35088 et al (9th Cir. Apr 14, 1995)

The court holds that the Washington State Department of Transportation (WSDOT) may not recover response costs under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 that it incurred cleaning up contamination it discovered when it began construction of the Tacoma Spur highway project. The court first holds that the WSDOT qualified as a "State" under CERCLA §107(a)(4)(A) for purposes of being afforded the presumption that its cleanup costs were consistent with the national contingency plan (NCP). The organized government of Washington State includes the WSDOT. Section 107(a)(4)(A) does not limit state agencies that may be considered a "State" to those agencies that acted pursuant to federal government authorization or agencies with special cleanup expertise. The court next holds that because the WSDOT is a "State" under §107(a)(4)(A), defendants should bear the burden of providing that WSDOT's actions were inconsistent with the NCP. The court concludes, however, that the district court's error in placing on the WSDOT the burden of proving that its actions were consistent with the NCP was harmless, because the district court would have reached the same decision regarding whether the WSDOT's response costs were consistent with the NCP. Next, the court holds that the 1985 NCP applies to 95 percent of the WSDOT's costs, because the WSDOT incurred over 95 percent of its response costs after the date the 1985 NCP was published in the Federal Register. The court concludes that it need not concern itself with the remaining five percent of the response costs, however, because, as it later determines, the WSDOT's cleanup actions were inconsistent with either the 1982 or the 1985 NCP. Therefore, the court holds that the district court's failure to apply the 1982 NCP to the remaining five percent of the WSDOT's costs was also harmless error. Next, the court holds that the WSDOT's cleanup actions for the site were inconsistent with the NCP. The WSDOT and its consultant did not refer to the NCP for guidance on how to handle the contaminants at the site, and the WSDOT's remedial investigation failed to determine either the nature or the extent of the threat the contamination posed, as both the 1982 and 1985 NCPs require. The WSDOT also failed to develop several alternative courses of action, conduct an initial screening of alternatives, or further analyze the remaining alternatives, as 40 C.F.R. §300.68 requires. Moreover, the WSDOT failed to provide an opportunity for public review and comment of the alternative remedial measures it was considering. The court holds, therefore, that the WSDOT may not recover its response costs under CERCLA §107. Next, the court holds that defendants may not recover the attorney fees they incurred to prove noncompliance with the NCP pursuant to Fed. R. Civ. P. 37(c). The WSDOT could have reasonably believed that it had complied with the applicable provisions of the NCP. The court also denied defendants' fee request pertaining to their requests to admit that the presence of contamination at the site did not pose an immediate and significant risk of harm to human life. The WSDOT reasonably believed that the materials at the site posed a significant risk of harm. Finally, the court holds that the district court properly denied the portion of defendants' bill of costs requesting costs of depositions that were not used at trial.

Counsel for Plaintiff
Deborah L. Cade, Ass't Attorney General
Attorney General's Office
Hwy.-Licenses Bldg., P.O. Box 40100, Olympia WA 98504
(206) 753-6200

Counsel for Defendants
Gregory Costello
Riddell, Williams, Bullitt & Walkinshaw
1001 4th Avenue Plaza, Ste. 4400, Seattle WA 98154
(206) 624-3600

Before Tang, Boochever, and Reinhardt, JJ.: