environmental Strategist, between the lines: Share the following with any client’s you have than can be responsible for designing or maintaining storm water systems. The potential liability created through this court decision is probably not covered by your standard insurance program for your impacted client’s. Impacted businesses should take a proactive approach by making sure their ducks are in order.
Design and Management of Stormwater System Enough to Impose CERCLA “Arranger” Liability, District Court Holds
July 14, 2010
Meline MacCurdy
In an apparent first, a federal judge in Washington has held a state agency that manages highway stormwater runoff liable under CERCLA[1] as an “arranger” for disposal of hazardous substances. In United States v. Washington State Department of Transportation (WSDOT),[2] Judge Bryan of the Western District of Washington held WSDOT liable as an “arranger,”[3] because it designed, operated, and maintained the stormwater systems around several major highways that discharge to waterways that are part of a massive Superfund site. The case illustrates that the scope of “arranger” liability under CERCLA remains wide despite the Supreme Court’s 2009 Burlington Northern[4] decision, where the Court limited “arranger” liability to entities that have an “intent to dispose.” That standard was met here, according to Judge Bryan, because designing the stormwater system was “an action directed to a specific purpose” of discharging “the highway runoff into the environment.” The court also declined to rule – at this stage – on the adequacy of WSDOT’s defenses that it complied with Clean Water Act (CWA) discharge permits, and that the agency had no ability to control the countless drivers that use the highways. The decision, if upheld and followed, could have serious implications for municipalities and private entities that manage and design stormwater systems.
Conclusion
The WSDOT decision opens the door for CERCLA liability to a potentially broad class of parties, both public and private, that design and operate stormwater systems. Those parties are wise to ensure that they follow their discharge permits to the letter, and retain documentation of this compliance, particularly if the receiving water or its sediments are already contaminated. The decision is also noteworthy as an enlargement of the scope of “arranger” liability at a time when many courts have scaled back that scope in response to the Supreme Court’s Burlington Northern decision. Those cases have generally held that the “intent to dispose” standard under Burlington Northern at least requires a fact-intensive inquiry, and that mere knowledge that a disposal may occur in the design of a product is insufficient to infer such an intent.[15] The WSDOT court’s brief analysis of the Burlington Northern standard stands in stark contrast to those cases, showing that at least some courts will yet continue to expand the scope of CERCLA liability.
For more information on this case, please contact Meline MacCurdy or any other member of Marten Law’s Waste Cleanup practice group.
For complete article go to: http://www.martenlaw.com/newsletter/20100714-cercla-arranger-liability