City of Seattle v. Washington State Department of Transportation

No. 24042-4-II (989 P.2d 1164) (Wash. Ct. App. December 3, 1999)

ELR Digest

The court holds that although a state department of transportation is technically liable under the Washington Model Toxics Control Act (MTCA) for the disposal of a tank car at a Superfund site, the department need not pay remedial action costs to a group of utilities that cleaned up the site. The department sold the tank car containing a hardened layer of asphalt to the former owner of the Superfund site. During cleanup, the utilities discovered that the asphalt had become contaminated with polychlorinated biphenyls (PCBs). Consequently, the utilities sought contribution for the car's disposal. The court first holds that the department is liable under the MTCA as an arranger for the disposal of a hazardous substance. When the department sold the tank car as scrap, it arranged for the disposal of the car and its contents. Moreover, the asphalt contained in the tank car is a petroleum-based product specifically enumerated as a hazardous substance under the MTCA, and no minimum level of hazardous substance is required to trigger liability. The court, however, holds that the department is not responsible for any portion of the cleanup costs associated with disposing of the PCB-contaminated asphalt at the site. No evidence suggests that the tank ever leaked or that the department ever added PCBs to the asphalt, and the hardened asphalt, by itself, did not contribute to the threat or a potential threat to human health or the environment.

The full text of this opinion is available from ELR (11 pp., ELR Order No. L-133).

Counsel for Appellant
Deborah L. Cade
Attorney General's Office
1125 Washington St. SE, Olympia WA 98504
(360) 753-6200

Counsel for Respondents
Dennis R. Colwell
Ingram, Zelasko & Goodwin
601 Bank of America Bldg.
P.O. Box 1106, Aberdeen WA 98520
(360) 533-2865

[30 ELR 20217]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]