ELR Citation: ELR 21376
No(s). s. C85-478TB, C86-990TB (W.D. Wash. Feb 19, 1988)

The court holds that the defendant in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 response cost action is not entitled to the innocent landowner defense as defined in CERCLA §§107(b)(3) and 101(35). The court first holds that there has been a release of hazardous substances on the defendant oil company's property, and that the petroleum exclusion in CERCLA §104(e)(2) does not apply. Sampling conducted on the property has indicated the presence of several substances considered hazardous under CERCLA, and some of the contaminants were found in amounts in excess of that which would have occurred in petroleum during the oil refining process. The court holds that defendant has not shown that its subsidiary was solely responsible for the release within the meaning of CERCLA §107(b)(3), since it is not disputed that the subsidiary deposited filter cake on the property that contained lead, cadmium, and chromium. The court holds that defendant has not shown that its sublessee was solely responsible for the release, since the sublessee had an indirect contractual relationship with defendant and defendant knew of the sublessee's sloppy operations. The court declines to rule at this time, however, on whether the sublessee's waste oil contained the hazardous substances later found on the property. Finally, the court holds that defendant has not exercised due care or taken the precautions necessary to assert the innocent landowner defense, since it allowed its sublessee to run a sloppy operation and did not take steps to prevent the sublessee from contaminating the property.

Counsel for Plaintiffs
Kathleen D. Mix, Ass't Attorney General
Temple of Justice, Olympia WA 98504
(206) 753-2550

Jackson Fox, Ass't U.S. Attorney
3600 Seafirst Fifth Ave., Plaza Bldg., 800 Fifth Ave., Seattle WA 98104
(206) 442-7970

Counsel for Defendant
William H. Bode
Spriggs, Bode & Hollingsworth
Suite 1100, 1015 15th St. NW, Washington DC 20005-2686
(202) 898-5800

Ray Graves
McGavick, Graves, Beale & McNerthney
1102 Broadway, Suite 500, P.O. Box 1317, Tacoma WA 98401
(206) 627-1181