Summary of the 2011 Transportation Research Board (TRB) Waste Management & Resource Efficiency Committee Workshop; “Sustainability & Liability in Transportation”

The Sustainability & Liability in Transportation Workshop was held in Portland, Oregon (hosted by the Oregon Department of Transportation) from July 25-27, 2011. There were a total of 37 presentations given by national and international transportation professionals during the first two days of the workshop. The third day involved a boat tour of the Portland Harbor Superfund Site. The workshop was well attended by representatives from state departments of transportation, the Federal Highway Administration and transportation consulting firms.

It was critical and essential that as many micro-breweries be visited and tested by TerraLogic’s owner and other TRB committee representatives, as time allowed.

TerraLogic was a Silver Sponsor of the workshop and volunteered its marketing space to the Oregon Chapter of Engineers Without Borders. The Chapter’s President Steve Adams was the last speaker of the workshop. Engineers Without Borders partners with developing country communities to improve their quality of life through the implementation of environmentally sustainable, equitable and economical engineering practices. The organization has over 350 projects worldwide; the Oregon Chapter has active projects in Haiti, Ecuador and Tanzania.

Along with the other presentations, TerraLogic gave two presentations at the workshop; Sustainable Sediment Control Action Plan Strategies for Winter Highway Maintenance and Sustainable Rest Area Design and Operation (see copies of these Power Point Presentations under the web site’s Resources Tab).

The presentation topic that caught my attention and could impact numerous state departments of transportation was given by Deborah Cade (Assistant Attorney General, State of Washington). A federal judge recently decided that the Washington State Department of Transportation (WSDOT) is joint and severally liable for CERCLA (Superfund) response costs incurred by the USEPA at the Thea Foss Water Waterway.

The original principle parties (City of Tacoma and local utilities) responsible for the site contamination spent $119 million in site cleanup costs from an old coal gasification plant. WSDOT installed a storm drain system for a connector road under the Interstate 705 freeway. The drains fed into the City of Tacoma’s storm sewers that emptied into the waterway. WSDOT also built the state Route 509 cable bridge over the waterway. It was claimed by the principal parties that the storm drains and the Route 509 construction resulted in releases of hazardous substances into the waterway.

It was argued that the stormwater drainage system from a state highway adjacent to the site, contained hazardous chemicals that historically contributed to the contamination of the site. There was no proof of stormwater control before stormwater MS4 regulations. As a result, WSDOT was held liable and was required to pay $6 million in cleanup costs, and 2 percent of all future costs to monitor and maintain the waterway remedy. It also was held liable for the utilities’ $1.6 million in attorneys’ fees and costs.

It is interesting to note that the court found that WSDOT had ignored repeated requests from the Washington Department of Ecology to stop the discharges of contamination into the Waterway, failed to respond to their requests until higher management got involved, unreasonably delayed implementing a solution to releases from the drains, and took 11 years after finding coal tar material in the drains to completely sever the connection with the storm sewer system that emptied into the waterway.

The take away message is that CERCLA liability can arise no matter how small the potential effect may be or the duration of time after site remediation, as long as there is proof that the defendant’s sources, which can be associated with stormwater management, contributed to part of the contamination. It is ironic that WSDOT, a leader in stormwater management, gets hit by this CERCLA action associated stormwater discharges.

This should be a wakeup call for many state DOTs that should consider performing a risk based analysis of potential surface water impacts from highway stormwater into or near CERCLA sites or streams that are or are potentially impaired. Risk management decisions from this type of pro-active study may reduce long term liability and protect financial resources. For interesting reading, I suggest you read the summary of the decision at http://www.martenlaw.com/newsletter/20100714-cercla-arranger-liability.