SteveK November 10th, 2010
In United States v. Washington State Department of Transportation, the U.S. District Court in Washington recently held the Washington State Department of Transportation (WSDOT) liable as an “arranger” of the discharge of hazardous materials under CERCLA. The case involved a portion of the Commencement Bay-Nearshore Tideflats Superfund Site in Tacoma, Washington, known as the Thea Foss and Wheeler Osgood Waterways. The U.S. contended that the WSDOT was responsible for contributing to the contamination at the site as an owner and operator of the highways and drainage structures, and as an arranger for the design and construction of the drainage structures that allowed contaminants to be discharged into the waterways. The issues of the responsibilities and liabilities of the WSDOT were considered by the court in a series of motions decided from June through September.
Ultimately, the court concluded that the WSDOT designed the stormwater system with the specific purpose to discharge the highway runoff into the environment, knowing that the runoff contained hazardous substances. The court further noted that the WSDOT could have designed the system to redirect, contain or treat the runoff, which would have avoided the discharges.
The WSDOT had also asserted that the discharge was a “federally permitted release,” and thus was exempt from CERCLA liability under ’107(j) as the drainage system was operated under a National Pollution Discharge Elimination System (NPDES) permit. The U.S. countered that there limitations of the permit had been exceeded and there were numerous unpermitted releases. The court concluded that there was insufficient evidence to determine the scope of the permits and whether the resulting injury from any impermissible discharges was divisible.
This decision provides an expansive view of the concept of arranger liability based upon the Supreme Court decision in Burlington Northern, whereas other courts have been taking a more narrow view. In most other matters, courts conduct a detailed analysis of the facts of the intent to discharge; whereas, in this decision, the factual analysis is somewhat limited.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department