Pre-Thanksgiving Superfund Rant

As the holiday approaches, I am particularly thankful that I am not counsel to the Washington State DOT in United States v. Washington State DOT, a case that continues to make me want to take EPA, DOJ, and United States District Judge Robert Bryan by the neck and ask them what the heck are they thinking. 

In July, I posted about Judge Bryan’s decision holding that the Washington DOT “arranged” for the disposal of hazardous substances by designing and operating a highway drainage system that deposited highway runoff containing hazardous substances into what became the Commencement Bay Superfund Site. As I noted then, the logic of that decision is that every Clean Water Act stormwater problem is now potentially a Superfund claim and every highway department – and every private developer with a parking lot – potentially faces not just stormwater enforcement, but a Superfund cost recovery suit. 

Last week, Judge Bryan issued another decision regarding the DOT’s potential arranger liability. Although his earlier decision held that Washington DOT had arranged for the disposal of hazardous substances through the design of its highway drainage systems, the court had not actually found the DOT liable under § 107(a)(3) of CERCLA. The DOT argued that, even if it arranged for the disposal of hazardous substances, the United States hasn’t “established a connection between the hazardous substances found at the [DOT] Property and the response costs incurred at the [Superfund site].” 

Judge Bryan wasn’t buying it. Instead, Judge Bryan concluded that, where plaintiff can establish contamination at defendant’s property that is at least similar to contamination at the Superfund site, and can establish a “plausible migration pathway by which the contaminant could have traveled from the defendant’s facility to the plaintiff’s site,” plaintiff has met its burden. The burden then shifts to the defendant to create a genuine issue of fact regarding causation.

Judge Bryan further concluded that it is up to the trial court to determine when to consider divisibility and apportionment defenses, and noted that “it would be consistent with the purposes of CERCLA to first fix liability and then determine any divisibility/apportionment defense based on causation.”

In other words, design a stormwater drainage system that directs contamination towards an area that needs a cleanup, and you are in Superfund litigation up to your neck until the final verdict is rendered.

Thanks, but no thanks.

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