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Boeing Co. v. Cascade Corp.

Citation: 30 ELR 20423
No. Nos. 96-35246, -35304, 207 F.3d 1177/50 ERC 1321/(9th Cir., 03/24/2000) Aff'd in part, rev'd in part

The court holds that when a party is liable for pollution response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), it must share them regardless of whether it is the sole cause of the costs. An airplane manufacturer brought a contribution action against its uphill neighbor, a trucking factory, after discovering and beginning remediation of a contaminated sandstone aquifer located under both properties. The court first holds that, under CERCLA, once a party is found liable, it is required to share the costs of response regardless of whether it is the sole cause of those costs. Where either polluter's conduct would have caused the same response cost to be incurred in the same amount, and the conduct was of substantially equal blameworthiness, the proper construction of the causation requirement in CERCLA is that both polluters should be treated as having caused the response cost. Pollution is properly treated under CERCLA as having caused the response cost even though it was not a sine qua non of the response cost.

The court next holds that the district court properly determined the amount of money the airplane manufacturer spent on remediation of the sandstone aquifer. To recover damages under CERCLA, a party must prove that the costs are necessary response costs consistent with the national contingency plan (NCP). The NCP requires accurate accounting of private-party costs, but that does not mean contemporaneous separation of expenses. The court further holds that the district court was within its discretion in using volume as the primary or exclusive basis for allocation. The airplane manufacturer provided the court with evidence from which the court could draw a conclusion regarding divisibility and share of responsibility. Though the testimony presented might have led the trial court to a different conclusion, the 70:30 allocation was among the reasonable conclusions supported by the evidence. The court, however, additionally holds that the district court improperly deducted from the airplane manufacturer's expenditures money it received from a settlement agreement with its predecessor on the land. Instead of eliminating double reimbursement for the same expense to the airplane manufacturer, the computation error had the effect of reducing the total expenditure by the $ 2.5 million the predecessor had contributed before applying the 70:30 ratio. Finally, the court holds that the district court properly issued a declaratory judgment that the remaining cleanup expenses should be split 70:30.

[A prior decision in this litigation is published at 26 ELR 21212.]

Counsel for Plaintiff
Mark W. Schneider
Perkins & Coie
U.S. Bancorp Tower
111 SW 5th Ave., Ste. 2500, Portland OR 97204
(503) 295-4400

Counsel for Defendant
George W. McKallip Jr.
Kennedy, Watts, Arellano & Ricks
2600 Pacwest Center
1211 SW 5th Ave., Portland OR 97204
(503) 228-6191

Before Hawkins and Schwarzer,1 JJ.