Washington State Dept of Transportation held liable for Stormwater runoff under CERCLA

Started by Jeffrey Sutton P.E.,M.ASCE, Staff Engineering at Erlandsen & Associates

Federal Court Holds Washington State Liable
Under Superfund Law for Stormwater Runoff
In what may be a first case of its kind, a federal district judge has ruled that the Washington State Department of Transportation is liable for cleanup costs under the superfund law for highway stormwater runoff that contained hazardous substances (United States v. Washington State Dept. of Transportation, W.D. Wash., No. C08-5722, 6/7/10).
Judge Robert J. Bryan of the U.S. District Court for the Western District of Washington held in a June 7 order granting partial summary judgment to the federal government that the state was liable under the Comprehensive Environmental Response, Compensation, and Liability Act because it arranged for the disposal of hazardous substances by designing the drainage systems for three highways—I-5, State Route 705, and State Route 509.
The runoff from the roadways drains into the Thea Foss and Wheeler Osgood waterways, which are located within the Commencement Bay-Nearshore Tideflats superfund site on Puget Sound in Tacoma, Wash.
The state Transportation Department “arranged for disposal of hazardous substances. It is undisputed that [the department] designed the drainage systems at issue,” Bryan wrote. “Designing is an action directed to a specific purpose. The purpose was to discharge the highway runoff into the environment. [The department] had knowledge that the runoff contained hazardous substances, and there was an actual release of the hazardous substances into the environment.”
According to the Environmental Protection Agency, the Commencement Bay-Nearshore Tideflats Superfund Site in Tacoma occupies 12 square miles and includes more than 300 active businesses, with almost 500 sources of contamination (142 DEN A-7, 7/28/09).
Bryan wrote in his order that highway runoff from the three highways contained the following hazardous substances: phthalates, cadmium, lead, zinc, nickel, and petroleum hydrocarbons.
Deborah L. Cade, state assistant attorney general, said the opinion is the first of its kind in using CERCLA to control stormwater runoff.
“There is no evidence in his case that the stormwater runoff is anything other than stormwater runoff. It’s just rainwater that falls on the highway,” The United States brought suit against the state transportation department on Dec. 2, 2008, seeking to recover its costs incurred in response to the releases and threatened releases of hazardous substances to the two waterways, located in Tacoma.
Response Costs Set at $6.8 Million
The United States alleged that, as of June 30, 2008, it had incurred at least $6.8 million in unreimbursed response costs linked to the Thea Foss and Wheeler Osgood Waterways.
Because the court found the department to be an arranger under CERCLA, Bryan wrote that he did not need to address whether the department was an owner or operator of the superfund site.
Arranger liability under CERCLA provides that one who disposes of or treats any hazardous substance will be liable for a subsequent release of such hazardous substance into the environment.
The state agency defended itself against the allegations of the federal government by claiming that it did not fall under one of the classes of responsible parties under the superfund law.
The United States countered that by claiming the department “arranged for disposal by designing, constructing, and operating drainage systems whose sole function was to collect highway runoff and dispose of it into nearby water-bodies,” according to the June 7 decision.