Case Summary: Washington State DOT Found Liable under CERCLA at the Commencement Bay Superfund Site Waterways

On March 10, 2011, the United States District Court for the Western District of Washington issued a bench ruling finding that Washington State Department of Transportation is jointly and severally liable for $9.3 million for response costs incurred in responding to releases and threatened releases of hazardous substances at the Thea Foss and Wheeler Osgood Waterways within the Commencement Bay Superfund Site.

Information about the Party
Commencement Bay Superfund Site Waterways
Pollutants and Environmental Effects
Summary of the Ruling
Contact Information

Information about the Party

Washington State Department of Transportation (WSDOT) is is a Washington governmental agency that constructs, maintains, and regulates the use of the state's transportation infrastructure.

Commencement Bay Superfund Site Waterways

The Thea Foss Waterway is one of the largest waterways at the Commencement Bay site with approximately 3 miles of shoreline. Numerous types of industries have operated along both the Thea Foss and Wheeler Osgood Waterways since the early 1900's. The Wheeler Osgood Waterway is one of the smaller waterways of Commencement Bay and is appended to the Thea Foss Waterway, lying in a southeasterly direction.

More information on the Thea Foss, Wheeler Osgood Waterway site is available from the Agency's Commencement Bay Superfund site profile webpage.

Pollutants and Environmental Effects

The west shore of the Thea Foss Waterway is largely owned by the City of Tacoma through the Metropolitan Parks District. The east shore is owned by numerous companies. Past operations on the Waterways include maritime industries, foundries, electroplating, woodworking, and plywood factories, as well as oil companies, and a coal gasification/electricity plant. The Waterways are also impacted by significant stormwater flows from stormdrains that drain over 5,000 acres of upland commercial and residential land. Over the years, these operations have led to the contamination of bottom sediments which are harmful to marine life in the waterways.

Summary of the Ruling

In the March 10, 2011 ruling, the Court recognized that by designing and installing the highway run-off drainage system and the drainage system on its Tacoma Spur property, WSDOT was responsible for collecting and releasing pollutants into the waterways, such as metals and polycyclic aromatic hydrocarbons (PAHs), including those from coal tar which was deposited on the Tacoma Spur property by a former coal gasification plant. The Court recognized that even though many third parties contributed pollutants, the discharges at issue were not solely caused by third parties. In addition, there was no showing of any particular due care for the highways or precautions taken against known releases of hazardous substances. Finally, the Court held that the environmental harm caused by these releases is indivisible from the harm caused by other PRPs. The Court rejected WSDOT's theory that its share should be limited to 5% of the costs based on its ownership and operation of only 5% of the total impervious surfaces which drain into the waterway. The Court concluded that this measure was not an appropriate indicator of harm because all impervious surfaces do not carry equal pollutant loads, and because it was not just impervious surfaces that drained to the waterway.

Contact Information

For more information, contact:

Kelly Cole
Assistant Regional Counsel
U.S. Environmental Protection Agency
1200 Sixth Ave., Suite 900, ORC 158
Seattle, WA 98101
(206) 553-1506
cole.kelly@epa.gov

David Smith-Watts
Attorney-Advisor
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460
(202) 564-4083
smith-watts.david@epa.gov