CERCLA (Superfund)

This case involved two main issues: (1) whether WSDOT could be considered an “arranger” of the disposal of hazardous substances, and (2) even if WSDOT is an arranger, are there other grounds on which WSDOT might still avoid liability for the cleanup costs – e.g., the fact that the release of hazardous substances was federally permitted.

Liability as an “Arranger”. Under CERCLA, a party that arranges for the disposal of a hazardous substance can be held liable for cleanup costs. The EPA alleged that WSDOT had arranged for the disposal of hazardous substances into the contaminated waterways because WSDOT had designed the stormwater drainage systems that carried the run-off. The court agreed with EPA’s position, finding that WSDOT is an “arranger”:

“The court is persuaded by the U.S.’s arguments. WSDOT arranged for disposal of hazardous substances. It is undisputed that WSDOT designed the drainage systems at issue. Designing is an action directed to a specific purpose. The purpose was to discharge the highway runoff into the environment. WSDOT had knowledge that the runoff contained hazardous substances and there was an actual release of the hazardous substances into the environment. WSDOT argues that it did not have control of the hazardous substances. However, it did have control over how the collected runoff was disposed of. WSDOT did design the drainage system and, as noted by the U.S., WSDOT has the ability to redirect, contain, or treat its contaminated runoff. For the foregoing reasons, WSDOT is an arranger under 42 U.S.C. § 9607(a)(3).” Federally Permitted Releases. CERCLA includes several exceptions, which can avoid or reduce a party’s liability for cleanup costs. One of those exceptions is that a party is not liable for a federally permitted release. In this case, WSDOT argued that even if it is considered an arranger, it still is not liable under CERCLA because it has operated the highway drainage facilities pursuant to an NPDES permit since 1995. The court agreed that, under CERCLA, federally permitted releases cannot give rise to liability for cleanup costs. Therefore, the court held open the possibility that WSDOT still might not be liable. However, the court also noted that there are limits on the scope of that defense against liability: for example, it would not protect an arranger against liability for releases that occurred before the effective date of the permit, or that were outside the scope of the permit, or that were in violation of the permit:

“It is undisputed that the permits do exist, but there is a dispute as to whether WSDOT is in compliance with the permits. Moreover, there is a question of the scope of the permits, whether there were releases outside that scope, and whether the injury is divisible. It is imprudent to decide this issue at this stage of litigation.” The court also considered other possible defenses, such as the claim that the contamination was caused by third parties – namely, highway users. The court also recognized this as a potential defense, and found that there was not enough information available to resolve that issue at this stage of the litigation.