State DOT Liable as Superfund Arranger for Design and Construction of Highway Stormwater System Known to Convey Contaminated Stormwater

August 8, 2010
by JOHN GULLACE
Client Alert Newsletter August 2010

In the recent U.S. v. WSDOT case in the Ninth Circuit, the United States asserted claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") against the Washington State Department of Transportation ("WSDOT") for the discharge of contaminated stormwater from highways into the Commencement Bay-Nearshore Superfund Site. On June 7, 2010, the U.S District Court for the Western District of Washington ruled on cross-motions for summary judgment that WSDOT is an arranger under CERCLA because it designed and constructed a highway stormwater system with knowledge that the system would convey contaminated stormwater from the highways to nearby waterways.

The decision is one of the first to find a governmental entity liable as an arranger by virtue of owning a stormwater system. If followed by other courts, this decision could have significant legal and financial ramifications for the typical municipality where stormwater is discharged untreated to surface waters through a municipal stormwater system.