United States of America v. Washington State Department of Transportation, No. 3:2008cv05722 - Document 140 (W.D. Wash. 2010)

Court Description: ORDER GRANTING THE UNITED STATES' MOTION FOR PARTIAL SUMMARY JUDGMENT, granting 103 . Signed by Judge Robert J. Bryan. (JL)

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United States of America v. Washington State Department of Transportation Doc. 140 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 12 13 14 15 UNITED STATES OF AMERICA, Plaintiff and Counterclaim-Defendant, v. CASE NO. 3:08-cv-05722 RJB ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, Defendant and Counterclaimant. 16 17 This matter comes before the Court on Counterclaim-Defendant the United States’ 18 Motion for Partial Summary Judgment. Dkt. 103. The Court has considered the pleadings filed 19 in support of and in opposition to the motion and the remaining file herein. 20 21 I. FACTUAL AND PROCEDURAL HISTORY The primary underlying facts of this case are well known by the Court and the parties and 22 will not be repeated herein. 23 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 On January 30, 2009, the Washington State Department of Transportation (“WSDOT”) 2 filed a counterclaim against the United States seeking contribution under section 113(f) of the 3 Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended 4 (“CERCLA”), 42 U.S.C. § 9613(f), based on allegations that (1) the United States Army Corps 5 of Engineers (“USACE”) dredged the Thea Foss Waterway (“Waterway”) between 1902 and 6 1949, and (2) permitted others to dredge the Waterway in the 1970s and the early 1980s and 7 possibly other years as well. Dkt. 10. 8 WDSOT alleged that the United States is a potentially responsible person (“PRP”) liable 9 for contribution under 42 U.S.C. § 9613(f) because USACE’s permitting activities qualify it as 10 an “operator” of the Waterway, an “arranger” of the disposal of hazardous substances in the 11 Waterway, and/or a “transporter” of hazardous substances to the Waterway under 42 U.S.C. §§ 12 9607(a)(2), (3), and (4), respectively. Id. 13 On July 6, 2009, the United States filed a motion for partial judgment on the pleadings, 14 seeking, in part, judgment on the matter of whether the United States is liable under CERCLA 15 for granting dredging permits to third parties. Dkt. 24. On September 15, 2009, the Court issued 16 an order denying the United States’ motion on the permitting issue. Dkt. 10. In its order, the 17 Court noted that “USACE’s liability, if any, will not be based on actual possession of the waste 18 but rather on what level of involvement the USACE engaged in when granting permits for 19 dredging and disposing of dredged materials.” Dkt. 47, at 10. The Court stated that while the 20 record was insufficiently developed at that stage to decide the permitting issue, “further 21 discovery is warranted to determine if liability is under 42 U.S.C. § 9607 is applicable.” Dkt. 47, 22 at 11. 23 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 2 1 On October 10, 2010 and after the completion of discovery, the United States filed this 2 motion for partial summary judgment on the permitting issue alleged in WSDOT’s counterclaim. 3 Dkt. 103. The United States contends that its evidence shows that because USACE’s 4 involvement in third parties’ dredging was “purely regulatory,” WSDOT cannot establish that 5 USACE is liable under section 113(f) of CERCLA, 42 U.S.C. § 9613(f), based on the issuance of 6 permits to private parties that authorized dredging or disposal activities in the Waterway. Dkt. 7 103, at 6. The United States also contends that even if the USACE were considered a potentially 8 responsible party, the “third party defense” provided in 42 U.S.C. § 9607(b)(3) applies. Dkt. 9 103, at 23. 10 The United States contends that the Seattle District of the USACE issues permits that 11 include dredging and disposing of dredged material under two statutory authorities: Section 10 of 12 the Rivers and Harbors Act (“RHA”), 33 U.S.C. § 403, and section 404 of the Clean Water Act 13 (“CWA”), 33 U.S.C. § 1344. Dkt. 103-1. According to the United States, when the USACE 14 receives a permit request pursuant to section 10 of the RHA or section 404 of the CWA, it 15 conducts a “broad analysis” to determine whether to grant a permit, including criteria such as 16 “environmental considerations, fisheries, wildlife, major species, [and] historical 17 [considerations].” Dkt. 103-6, at 5. Additionally, USACE would receive comments from 18 relevant state and federal agencies as well as reactions through a public notice and comments 19 system. Dkt. 103-6, at 22-23. 20 In granting a permit to allow dredging, USACE would apparently place conditions on 21 dredging operations. For example, USACE employees were “trained to put the amount of 22 material, the type of disposal, the type of dredging, quantities, all in the drawings” attached to 23 permits. Dkt. 103-6, at 18. The effect of placing this information in the drawings attached to the 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 3 1 permits served to “essentially limit[] the dredging” to the criteria and conditions set forth in the 2 drawings attached to the permit. Id. While the USACE may place conditions on a permit, the 3 United States contends that the USACE does not design a dredging project for entities that 4 request permits. Dkt. 103, at 7. According to the United States, “it is the permittee, not the 5 permitting agency, that decides where to dredge, how much to dredge, and what type of 6 equipment to use.” Id. As a result, the United States argues that the USACE does not “operate, 7 conduct, manage, direct or supervise the projects” for which it issues permits under CWA section 8 404 or RHA section 10. Dkt. 103, at 8. 9 On November 4, 2010, WSDOT filed a response. Dkt. 130. WSDOT contends that there 10 are disputed issues of fact regarding (1) the extent of USACE-permitted dredging and (2) how 11 much control the USACE exercised over the Waterway and its polluted sediments. Dkt. 130, at 12 1. WSDOT contends that several facts establish the extent to which the USACE was involved in 13 granting permits to dredge in the Waterway. Dkt. 130, at 2. 14 First, WSDOT points to a 1902 Act of Congress that appropriated money for public 15 works for the Waterway and other waterways around the country to support its contention that 16 the USACE “controlled” the Waterway. Dkt. 131-1 (Act of June 13, 1902, ch. 1079, § 1, 32 17 Stat. 331). WSDOT contends that because the Act granted the USACE “complete control of the 18 use, administration, and navigation” of projects such as the Thea Foss Waterway, the USACE 19 was Congressionally-mandated to exert dominance over all activities that took place there. Dkt. 20 130, at 3. 21 Second, WSDOT contends that several examples of correspondence from the early 22 twentieth century between the USACE and third parties demonstrate that the USACE “required” 23 the third parties to conduct dredging operations in the Waterway. Dkt. 130, at 4-9. According to 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 4 1 WSDOT, because the USACE “required” these operations, it effectively controlled when and 2 where third parties would dredge in the Waterway. Id. 3 Finally, WSDOT argues that more recent permitting activities by the USACE 4 demonstrates that the USACE retains “control” over the Waterway and the dredging operations 5 that take place within it. Dkt. 130, at 9-11. WSDOT contends that because the USACE issues 6 permits not as a disinterested regulator, but as “the entity that operates and controls the 7 navigational project” that is the Waterway, any action that takes place within the Waterway that 8 may affect its navigability would necessarily be conducted with the acquiescence of the USACE. 9 Id. 10 On November 18, 2010, the United States filed a reply. Dkt. 138. In its reply, the United 11 States contends that WSDOT’s contention that the USACE “controlled” the Waterway is 12 unsupported by relevant facts. Id. Additionally, the United States argues that even if the 13 evidence that WSDOT sets forth is accepted as true, it does not create a genuine issue of material 14 fact as to whether there is CERCLA liability when the USACE granted specific permits pursuant 15 to its authority under the RHA and CWA. Id. 16 17 II. SUMMARY JUDGMENT STANDARD Summary judgment is proper only if the pleadings, the discovery and disclosure materials 18 on file, and any affidavits show that there is no genuine issue as to any material fact and that the 19 movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is 20 entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient 21 showing on an essential element of a claim in the case on which the nonmoving party has the 22 burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue 23 of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 5 1 for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 2 (1986)(nonmoving party must present specific, significant probative evidence, not simply “some 3 metaphysical doubt.”). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a 4 material fact exists if there is sufficient evidence supporting the claimed factual dispute, 5 requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty 6 Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors 7 Association, 809 F.2d 626, 630 (9th Cir. 1987). 8 The determination of the existence of a material fact is often a close question. The court 9 must consider the substantive evidentiary burden that the nonmoving party must meet at trial – 10 e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. 11 Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor 12 of the nonmoving party only when the facts specifically attested by that party contradict facts 13 specifically attested by the moving party. The nonmoving party may not merely state that it will 14 discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial 15 to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). 16 Conclusory, non specific statements in affidavits are not sufficient, and “missing facts” will not 17 be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). 18 19 III. DISCUSSION To establish the United States’ liability for contribution under section 113(f) of 20 CERCLA, 42 U.S.C. § 9613(f), WSDOT must establish that the USACE falls within one of the 21 classes of “persons” enumerated in section 107(a) of CERCLA, 42 U.S.C. § 9607(a). See 42 22 U.S.C. § 9613(f)(1) (“Any person may seek contribution from any other person who is liable or 23 potentially liable under section 9607(a) of this title”). Under section 107(a) of CERCLA, 42 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 6 1 U.S.C. § 9607(a), the classes of persons that may give rise to liability include “operators,” 2 “arrangers,” and “transporters.” 42 U.S.C. § 9607(a). 3 The United States argues that because the USACE’s permitting activities do not qualify it 4 as an operator, arranger, or transporter under section 107(a) of CERCLA, the USACE cannot be 5 held liable for contribution under section 113(f) of CERCLA as a result of its permitting 6 activities. Dkt. 103, at 14. In its response, WSDOT concedes that the United States is not liable 7 as a transporter under CERCLA. Dkt. 130, at 1-2. 8 The primary question that remains, then, is whether the USACE’s permitting activities 9 creates liability for the USACE as either an operator under section 107(a)(2) of CERCLA, 42 10 U.S.C. § 9607(a)(2), or as an arranger under section 107(a)(3) of CERCLA, 42 U.S.C. § 11 9607(a)(3). If summary judgment is not granted on either of those issues, then the “third party 12 defense,” 42 U.S.C. § 9607(b)(3), must be addressed. 13 A. Operator liability 14 Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2), provides that a party may be 15 liable if, at the time of disposal of any hazardous substance, it “operated” the facility “at which 16 such hazardous substances were disposed of.” Pursuant to the definitions provided in Section 17 101(9) of CERCLA, 42 U.S.C. § 9601(9), the “facility” in question here is the Waterway itself, 18 or some larger area of which the Waterway forms a part. 19 The Supreme Court clarified the standard for CERCLA operator liability in United States 20 v. Bestfoods, 524 U.S. 51 (1998). In assessing the liability of a parent corporation for the actions 21 of its subsidiary, the Court stated: 22 23 [U]nder CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility. To sharpen the definition for the purposes of CERCLA's concern with environmental contamination, an operator must manage, direct, or conduct operations specifically related to pollution, that 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 7 1 is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations. 2 Id. at 66-67 (1998). The analysis of whether a party is the “operator” rests on the relationship 3 between that party to the facility itself. Id. at 68. 4 Ninth Circuit case law identifies two theories on which operator liability may be 5 premised. See Steadfast Ins. Co. v. United States, 2009 WL 3785565 (C.D.Cal. November 10, 6 2009). The first theory is the “authority to control test” explained in Kaiser Aluminum v. 7 Catellus Development Corp., 976 F.2d 1338 (9th Cir.1992). See State of Washington v. United 8 States, 930 F.Supp. 474, 483 (W.D.Wash.1996). Under the “authority to control test,” operator 9 liability attaches “if the defendant had authority to control the cause of the contamination at the 10 time the hazardous substances were released into the environment.” Kaiser, 976 F.2d at 1341. 11 The second theory is the “actual control” standard articulated in Long Beach Unified 12 School Dist. v. Dorothy B. Godwin California Living Trust, 32 F.3d 1364 (9th Cir.1994). See 13 State of Washington, 940 F.Supp. at 483. Under the “actual control” standard, to be an operator 14 of a facility, an entity “must play an active role in running the facility, typically involving hands15 on, day-to-day participation in the facility’s management.” Long Beach, 32 F.3d at 1367. 16 The United States relies on United States v. Township of Brighton, 153 F.3d 307 (6th Cir. 17 1998) to support its contention that when a regulator (such as the USACE) engages in “purely 18 regulatory activity,” such action “does not suffice to render a government entity liable” as an 19 operator. Brighton, 153 F.3d at 316. Under Brighton, “the dispositive question” is “whether the 20 government entity was running the facility or merely regulating it.” Id. at 316, n.11. As the 21 concurring opinion further explained, a regulator’s activities can only give rise to operator 22 liability “where its involvement extends beyond mere regulation and amounts to substantial 23 control, or active involvement in the activities of the facility.” Id. at 325 (Moore, J., concurring 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 8 1 in result). At the same time, however, the Brighton court noted that “mere regulation does not 2 suffice to render a government entity liable, but actual operation (or “macromanagement”) does.” 3 Id. at 316. 4 Also illuminating is the Third Circuit case of FMC Corp. v. United States Dep’t of 5 Commerce, 29 F.3d 833 (3rd Cir. 1994). There, the Court held that the United States was liable 6 as an operator of a World War II industrial facility under the “actual control” standard when the 7 United States 8 9 10 11 determined what product the facility would manufacture, controlled the supply and price of the facility's raw materials, in part by building or causing plants to be built near the facility for their production, supplied equipment for use in the manufacturing process, acted to ensure that the facility retained an adequate labor force, participated in the management and supervision of the labor force, had the authority to remove workers who were incompetent or guilty of misconduct, controlled the price of the facility's product, and controlled who could purchase the product. 12 Id. at 844. WSDOT relies on FMC Corp. for operator liability by arguing that the USACE 13 “explicitly controlled all aspects of the…Waterway” by “taking vigorous and repeated actions to 14 maintain the full width and depth of that project.” Dkt. 130, at 15. 15 Given the case law, the proper standard to determine whether the USACE is subject to 16 operator liability for issuing permits is driven by the Supreme Court’s interpretation in Best 17 Foods as applied in the “actual control” standard in Brighton. Furthermore, cases such as FMC 18 Corp. provide an example of the type of “control” that an entity must exert before operator 19 liability may attach. 20 Here, WSDOT fails to meet its burden by demonstrating a genuine issue of material fact 21 as to whether the USACE’s permitting activities create operator liability under section 107(a)(2) 22 of CERCLA, 42 U.S.C. § 9607(a)(2). 23 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 9 1 First, WSDOT’s reliance on the 1902 Act does not suggest that the USACE exerted 2 “hands-on, day-to-day control” of the management of the Waterway (Long Beach, 32 F.3d at 3 1367) or that the USACE managed, directed, or conducted third party dredging operations in the 4 Waterway (Bestfoods, 524 U.S. at 66-67). The Act grants the USACE the duty to “prescribe 5 such rules and regulations for the use, administration, and navigation of any or all canals and 6 similar works of navigation that now are, or that hereafter may be, owned, operated, or 7 maintained by the United States…” Dkt. 131-1, at 45 (emphasis added). Included in this list of 8 “any or all canals” is the Waterway, as well as presumably hundreds of other public works. 9 While the Act does grant to the USACE some domain over the Waterway, it can hardly be said 10 that the Act provides that the USACE has “hands-on, day-to-day control” of the management of 11 the Waterway. 12 Second, the correspondence that WSDOT relies on to establish that the USACE 13 “controlled” the Waterway is not persuasive and does not establish a genuine issue of material 14 fact. Correspondence between the USACE and third parties could have demonstrated that the 15 USACE had a significant level of involvement when granting permits for dredging and therefore 16 implied that the USACE “managed, directed, or conducted operations” specifically related to 17 dredging in the Waterway. Bestfoods, 524 U.S. at 66-67. However, the evidence in this case 18 does not suggest that conclusion. 19 Contrary to the assertions of WSDOT, the correspondence does not establish that the 20 USACE “required” any third party to conduct dredging operations. The documents relied on by 21 WSDOT show that the USACE was involved in back and forth discussions that differ 22 significantly from the conduct of the United States in FMC Corp. As noted above, the Third 23 Circuit held in that case that the United States was liable as an operator when the government 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 10 1 affected to a significant degree nearly every aspect of an industrial facility. FMC. Corp., 29 F.3d 2 at 844. While the evidence in this case shows that the USACE and third parties discussed 3 dredging operations, it does not show that the USACE planned specific dredging operations or 4 decided specifically when, where, or how a dredging operation would take place. 5 Furthermore, courts have found the United States not liable as an operator where the 6 government was more involved with the facilities in question than the permitting activities in this 7 case. See, e.g. United States v. Iron Mountain Mines, Inc., 987 F.Supp 1277, 1287-88 (E.D. Cal. 8 1997) (United States was not an operator even though it provided financing and subsidies in 9 addition to acting as a regulator); State of Washington, 930 F.Supp. 485-86 (concluding United 10 States could not be considered an operator where it had exercised oversight of shipyard activities 11 in order to promote efficiency and control costs). 12 Finally, permits issued by the USACE pursuant to the RHA and the CWA show that the 13 USACE was not engaged in day-to-day, hands-on management of the Waterway. Particularly 14 relevant to this conclusion are facts established by the United States that are not rebutted by 15 WSDOT. The USACE does not design a dredging project for a third party but merely assesses 16 whether or not a permit should be granted. Dkt. 103-5, at 9. It is the third party that decides 17 where to dredge and how much material will be dredged. Furthermore, the USACE was not 18 required to conduct an after-action inspection for every project. Dkt. 103-6, at 15. For those 19 projects that did not require an after-action inspection, the USACE would not necessarily know 20 whether a project was performed in the manner in which it was permitted. Id. The evidence 21 shows that the USACE’s level of involvement in the permitting process pursuant to the RHA and 22 the CWA does not rise to a level such that the USACE managed, directed, or controlled the third 23 party dredging operations. Bestfoods, 524 U.S. at 66-67. 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 11 1 The USACE’s permitting activities do not give rise to operator liability pursuant to 2 section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2), because there are no genuine issues of 3 material fact as to whether (1) the USACE managed, directed, or controlled third party dredging 4 operations or (2) the USACE had hands-on, day-to-day control of the management of the 5 Waterway. Accordingly, the United States should be granted summary judgment on the issue of 6 operator liability with regards to its permitting activities. 7 B. Arranger liability 8 Section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3), provides that arranger liability 9 arises when “any person who by contract, agreement, or otherwise arranged for disposal or 10 treatment…of hazardous substances owned or possessed by such person, by any other party or 11 entity, at any facility…owned or operated by another party or entity and containing such 12 hazardous substances.” 42 U.S.C. § 9607(a)(3). 13 While the term “arranged for” is not defined in CERCLA, courts have explained the 14 concept. For example, one court determined that the issues involved in determining arranger 15 liability under CERCLA are distinct from those involved in determining owner or operator 16 liability. Basic Management Inc. v. United States, 569 F.Supp.2d 1106, 1116 (D.Nev. 2008). 17 Indeed, “arranger liability requires active involvement in the arrangements of disposal of 18 hazardous substances. However, control is not a necessary factor in every arranger case. The 19 Court must consider the totality of the circumstances ... to determine whether the facts fit within 20 CERCLA's remedial scheme.... [T]here must be a ‘nexus’ that allows one to be an arranger.” Id., 21 quoting Coeur D’Alene Tribe v. Asarco, Inc., 280 F.Supp.2d 1094, 1130-31 (D.Idaho 2003). 22 There are two lines of cases in the area of direct arranger liability: (1) “traditional” 23 arranger liability cases in which “the sole purpose of the transaction is to arrange for the 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 12 1 treatment or disposal of the hazardous wastes,” United States v. Shell Oil Co., 294 F.3d 1045, 2 1054 (9th Cir.2002) (citations omitted), and (2) “broader” arranger liability, in which “control is 3 a crucial element of the determination of whether a party is an arranger.” Id. at 1055. With 4 respect to the broader arranger liability, the court noted that “[t]here is no bright-line test, either 5 in the statute or in the case law, for a broad theory of arranger liability under § 9607(a)(3). 6 Rather, we are required to sort through the fact patterns of the decided cases in order to find 7 similarities and dissimilarities to the fact pattern of our case.” Id. at 1055-56. After evaluating 8 the cases identified by the Shell Oil court as broader arranger liability cases, the applicable 9 standard was identified by one district court as follows: “Arranger liability requires a person to: 10 (1) own or possess waste and arrange for its disposal; or (2) have the authority to control and to 11 exercise some actual control over the disposal of waste.” Coeur D’Alene Tribe, 280 F.Supp.2d 12 at 1132. 13 More recently, the Supreme Court articulated principles regarding arranger liability that 14 are useful here. In Burlington Northern and Santa Fe Railway Company v. United States, 129 S. 15 Ct. 1870 (2009), the Court stated that interpreting the language of CERCLA required giving it its 16 “ordinary meaning” and concluded that “under the plain language of the statute, an entity may 17 qualify as an arranger under § 9607(a)(3) when it takes intentional steps to dispose of a 18 hazardous substance.” Id. at 1879. 19 Here, WSDOT is unable to overcome the United States’ motion for summary judgment 20 under either the Shell Oil standard or the principles articulated in Burlington Northern. 21 First, the United States did not exercise “actual control” over the hazardous substances to 22 the extent it establishes arranger liability under Shell Oil. In that case, the Ninth Circuit 23 concluded that the United States did not have “actual control” over waste disposal where “the 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 13 1 waste never belonged to the United States” and no U.S. official or employee had managed its 2 disposal. Shell Oil, 294 F.3d 1057-1058. In this case, WSDOT does not meet its burden of 3 proving arranger liability by demonstrating a genuine issue of material fact by showing (1) that 4 the USACE owned or possessed the hazardous substances, or (2) that a United States official or 5 employee arranged for or managed the disposal of the hazardous substances. Additionally, the 6 USACE had neither the authority to control nor exercised actual control over the disposal of the 7 hazardous substances. 8 Second, there is no indication that the United States took intentional steps to dispose of 9 the hazardous substances that were apparently dredged by the third parties. See Burlington 10 Northern, 129 S. Ct. at 1879. The USACE performed its regulatory function by issuing permits 11 to third parties in an attempt to maintain the navigability of the Waterway. The evidence 12 presented by WSDOT does not establish that the USACE took intentional steps to dispose of the 13 hazardous substances, particularly when one considers the evidence that shows that the USACE 14 itself did not undertake the work that it permitted and did not design the third party dredging 15 projects. 16 Finally, the Supreme Court in Burlington Northern also stated that the fact that the 17 defendant had taken precautionary steps to attempt to prevent the entities to which it was selling 18 from leaking or spilling hazardous substances further supports the conclusion that the defendant 19 there did not intend to dispose of hazardous substances. Burlington Northern, 129 S. Ct. at 1880. 20 Here, the USACE’s inclusion of general and specific conditions in the permits that it granted, 21 aimed at protecting human health and the environment (Dkt. 103-6, at 19-20), implies that the 22 USACE was not intending to arrange the disposal of hazardous substances. 23 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 14 1 The USACE’s permitting activities do not give rise to arranger liability pursuant to 2 section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3), because there are no genuine issues of 3 material fact as to whether the USACE (1) owned or possessed the hazardous substances and 4 arranged for their disposal, (2) had the authority to control and exercised some actual control 5 over the disposal of the hazardous substances, or (3) took intentional steps to dispose of the 6 hazardous substances that were apparently dredged by the third parties. Accordingly, the United 7 States should be granted summary judgment on the issue of arranger liability with regards to its 8 permitting activities. 9 10 C. Third party defense As stated above, the United States should be granted summary judgment on both the 11 issue of operator liability and arranger liability. Accordingly, the Court need not determine 12 whether the United States should also be granted summary judgment on the issue of a “third 13 party defense” pursuant to 42 U.S.C. § 9607(b)(3). 14 IV. ORDER 15 Therefore, it is hereby ORDERED that the United States’ motion for partial summary 16 judgment (Dkt. 103) is GRANTED. WSDOT’s counterclaim seeking liability on the United 17 States under section 113(f) of CERCLA, 42 U.S.C. § 9613(f), for the USACE’s issuance of 18 permits to private parties that authorized dredging or disposal activities in the Thea Foss 19 Waterway is DISMISSED. 20 21 22 23 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 15 1 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 2 to any party appearing pro se at said party’s last known address. 3 4 5 6 Dated this 7th day of December, 2010. A ROBERT J. BRYAN United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT- 16

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