## Facts

- Western Processing Co. operated a hazardous-waste processing facility in Kent, Washington, for decades; the site became contaminated and was addressed through government cleanup efforts.
- The United States and the State of Washington brought actions seeking response costs and other relief related to the Western Processing site under CERCLA and Washington’s Model Toxics Control Act (MTCA).
- Various industrial entities generated wastes that were shipped to Western Processing for treatment or disposal.
- Several transportation companies transported hazardous substances generated by others to the Western Processing site.
- Certain defendants (including generator defendants) filed third-party complaints and cross-claims against the transportation companies, asserting the transporters were potentially responsible parties under CERCLA (including § 107(a)(4) and, alternatively, § 107(a)(3)) and under MTCA.
- The transporter defendants sought summary judgment on the CERCLA claims, arguing they were not liable as “transporters” unless they selected the Western Processing site as the destination.
- The transporter defendants also argued they could not be treated as CERCLA “arrangers” based solely on transporting waste.
- Some transporter defendants asserted that, as common carriers subject to duties to serve customers, strict liability should not apply to them in this setting.
- The transporters also sought summary judgment on MTCA claims, arguing the same “site selection” element defeated liability.

## Issues

1. Under CERCLA § 107(a)(4), are transporters liable for hazardous substances transported to a facility when the transporter did not select the disposal or treatment facility or site?
2. Can a transporter that merely carries waste to a destination chosen by others be held liable as an “arranger” under CERCLA § 107(a)(3)?
3. Does common-carrier status create a defense to CERCLA liability beyond the defenses listed in CERCLA § 107(b)?
4. Under Washington’s MTCA, can the transporter claims be resolved on summary judgment, or do disputes about who selected the Western Processing site require the claims to proceed?

## Decision

- The court held that CERCLA § 107(a)(4) transporter liability applies only when the transporter accepted hazardous substances for transport to facilities or sites “selected by such person,” meaning selected by the transporter; transporters that did not select the Western Processing site were not liable under § 107(a)(4) on that record.
- The court rejected the attempt to impose CERCLA § 107(a)(3) arranger liability on transporters based only on their transportation role, reasoning that reading transporters into § 107(a)(3) would conflict with CERCLA’s separate and more limited transporter-liability provision in § 107(a)(4).
- The court rejected a “common carrier” defense to CERCLA liability, concluding that CERCLA § 107(b) sets out the available defenses and does not include common-carrier status.
- The court denied summary judgment on MTCA claims because genuine disputes of material fact remained as to who selected the Western Processing site as the destination for the wastes.

## Legal Principles

- CERCLA § 107(a)(4) imposes transporter liability only when the transporter selected the disposal or treatment facility, incineration vessel, or other site to which the hazardous substances were transported.
- A transporter cannot be converted into a CERCLA § 107(a)(3) arranger based solely on hauling wastes; CERCLA’s statutory structure treats arranger (generator/arranging) liability and transporter liability as distinct categories.
- CERCLA § 107(b) provides the defenses to liability; courts will not add an extra defense for common carriers based on their regulatory duties or status.
- When site selection is a material element of liability under state cleanup law such as MTCA, unresolved fact questions about who chose the destination can defeat summary judgment.

## Conclusion

United States v. Western Processing Co. holds that CERCLA transporter liability under § 107(a)(4) depends on the transporter’s selection of the disposal or treatment site, and that transporters may not be tagged as § 107(a)(3) arrangers based only on transportation. The court also ruled that common-carrier status is not a CERCLA defense because § 107(b) supplies the available defenses. Because the record left fact disputes about who selected the Western Processing site, the court allowed the MTCA claims to continue past summary judgment.


United States v. Western Processing Co., 756 F. Supp. 1416 (1991)