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Washington v. United States

ELR Citation: 26 ELR 21370
Nos. C94-5326FDB, -5518FDB, 922 F. Supp. 421/(W.D. Wash., 03/07/1996) motion to divide contaminated site denied

The court denies two responsible parties' motion to divide a contaminated harbor into two operable units for purposes of allocating liability and damages under the Comprehensive Environmental Response, Compensation, and Liability Act. The first proposed operable unit was contaminated primarily with polyaromatic hydrocarbons from one party and the second with metals from the other party; however, both pollutants had commingled in the harbor over time. The court first holds that the responsible parties have the burden of proof in moving to limit their liability by dividing the environmental harm in accordance with what they caused. The responsible parties did not satisfy their burden, however, because they neither admit nor deny that there are commingled contaminants in the harbor, but point merely to the fact that there are different sources of contaminants around the harbor. The contamination is not divisible geographically, because there is merely a showing that there are areas where concentrations of contaminants are higher than in other areas. There is likewise no showing that division is possible based on volume. Nor have the responsible parties made a case for two separate injuries, because they failed to demonstrate that the concentrated pollutants have not fouled the entire site to an injurious level. Further, the responsible parties failed to prove that the contamination is a single, divisible harm, because they do not admit there is a single harm, or that there are commingled contaminants, or that they were specifically responsible for certain volumes of specific material. Merely claiming that a geographic division is appropriate because the U.S. Environmental Protection Agency's initial cleanup efforts divided the site for remediation purposes does not amount to carrying the burden of proof that the harm that a particular party caused is divisible, and is a poor showing on which to grant relief from joint and several liability.

Counsel for Plaintiff
Charles F. Secrest, Ass't Attorney General
Attorney General's Office
Hwy.-Licenses Bldg., Olympia WA 98504
(206) 753-6220

Counsel for Defendant
James L. Nicoll Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000