Washington State Dept. of Transp. v. Washington Natural Gas Co., Pacificorp., s. 93-35088
| Decision Date | 13 July 1995 |
| Docket Number | Nos. 93-35088,93-35137,93-35289,93-35292 and 93-35330,93-35130,s. 93-35088 |
| Citation | 59 F.3d 793 |
| Parties | , 95 Cal. Daily Op. Serv. 5436, 95 Daily Journal D.A.R. 9272 WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellant-Cross-Appellee, v. WASHINGTON NATURAL GAS COMPANY, PACIFICORP, Defendants-Appellees-Cross-Appellants, Advance Ross Corporation, Third-Party-Defendant-Appellee-Cross-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Deborah L. Cade, Olympia, WA, for plaintiff-appellant-cross-appellee.
Gregory Costello, Riddell, Williams, Bullitt & Walkinshaw, Seattle, WA, for defendant-appellee-cross-appellant, Washington Natural Gas.
Louis A. Ferreira, Stoel, Rives, Boley, Jones & Grey, Portland, OR, for defendant-appellee-cross-appellant, Pacificorp.
Peter Petrakis, Katten, Muchin & Zavis, Chicago, IL, for third-party-defendant-appellee-cross-appellant.
Dennis J. Dunphy, Schwabe, Williamson, Ferguson & Burdell, Seattle, WA, for third-party-defendant-appellee-cross-appellant.
Appeals from the United States District Court for the Western District of Washington.
Before: TANG, BOOCHEVER, and REINHARDT, Circuit Judges.
This is a review of several judgments of the United States district court, western district of Washington. The Washington State Department of Transportation (WSDOT) initiated this action against Washington Natural Gas Company (WNG), Pacificorp, and Advance Ross Corporation seeking recovery costs due under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. Sec. 9601, et seq. On cross-motions for partial summary judgment, the district court concluded that the defendants were responsible parties under CERCLA Sec. 107, 42 U.S.C. Sec. 9607. The district court conducted a bench trial to determine damages and entered a judgment in favor of WNG et al. The district court concluded that WSDOT was not entitled to recover its response costs because WSDOT did not comply with the National Contingency Plan ("NCP") promulgated by the Environmental Protection Agency ("EPA") pursuant to CERCLA. 1
The overarching issue on this appeal is whether WSDOT can recover its response costs. To answer this question, we must address several related issues. First, under 42 U.S.C. Sec. 9607(a), is a state entitled to a presumption that its actions are consistent with the NCP? The effect of this presumption is to shift the burden of proving inconsistency with the NCP. We conclude that states are entitled to the presumption of consistency. Second, is WSDOT the "State" under 42 U.S.C. Sec. 9607(a)? We conclude that WSDOT is the "State," but further conclude that erroneously placing the burden of proof on WSDOT was harmless error. Third, were WSDOT's actions consistent with the relevant NCP, thereby entitling WSDOT to recovery of its response costs? We conclude that WSDOT's actions were inconsistent with the NCP and thus WSDOT is not entitled to recover its costs. 2
In 1982, WSDOT began construction of the Tacoma Spur, an interstate highway project designed to connect Interstate 5 to Schuster Parkway and downtown Tacoma, Washington. In late 1983 and early 1984, WSDOT's geotechnical consultant, the firm of Hart Crowser, discovered tar-like material in soil borings taken to gain information on the material that would support planned highway structures. WSDOT reported the contamination to the Washington State Department of Ecology ("WSDOE"). WSDOE tested soil samples using the persistence testing method, which tests for PAH compounds. Because these soil samples came from the geotechnical borings, they were not obtained utilizing protocol typically followed to gather environmental samples. WSDOE reported that the tarry material was contaminated with polycyclic aromatic hydrocarbons ("PAHs") at a level of greater than one percent. Under WSDOE's regulations, material with a concentration of PAHs greater than one percent is considered "extremely hazardous waste."
WSDOE advised WSDOT that it might try to get the site listed on the CERCLA National Priority List, to obtain funding through the Superfund program. According to Hart Crowser, WSDOT did not want to pursue that option because it involved extra time and effort. Neither Hart Crowser nor WSDOT referred to the CERCLA National Contingency Plan to determine how to proceed.
WSDOT hired Hart Crowser as an environmental consultant to investigate the site and determine the type and extent of subsurface contamination. Hart Crowser began its investigation in July, 1984. The firm discovered from historical records that a coal gasification plant had operated on the construction site from 1884 until 1924. Sanborn maps indicated the location of the gas holders used to store the manufactured gas. Hart Crowser assumed that the plant, along with any gas holders, had been removed because the plant was not visible.
Hart Crowser also learned that tar was a likely by-product of the coal gasification process and may have accumulated in gas holders. However, Hart Crowser expected that the tar had been removed because it had some commercial value. The firm also assumed that any remaining tar waste had been dumped on the extremities of the plant grounds. To avoid running into the foundations of the gas holders, Hart Crowser did not put borings into the area where the gas holders had been located.
In addition to conducting historical research, Hart Crowser drilled twenty-six borings and obtained 359 soil samples. Upon testing these samples, Hart Crowser identified two types of contaminated material: tar-like material, and oily silt and sand. Hart Crowser's tests indicated a PAH concentration under one percent in the tar-like material. The highest concentration of PAHs in one sample of tar-like material was .5 percent and the second highest was .15 percent. The concentration of PAHs in the oily silt and sand did not exceed .02 percent. Hart Crowser did not use the test WSDOE had used to identify PAHs--Hart Crowser's method did not test for the total PAH level. Therefore Hart Crowser's report relied on WSDOE's original tests to conclude that the tar may be classified as a hazardous waste by WSDOE standards.
Hart Crowser estimated the volume of the sub-surface contaminants by interpolating between the borings. The calculations yielded estimates that the site contained 40 to 100 cubic yards, a maximum of 100 tons, of coal tar and 4,500 to 6,000 cubic yards of oily silt and sand, a maximum of 10,000 tons. Hart Crowser issued a report containing its findings in November, 1984.
While Hart Crowser conducted its investigation, WSDOT organized an interagency team, consisting of representatives of WSDOT, WSDOE, and Hart Crowser, to discuss the action that needed to be taken. At various times, the team also included representatives of the Federal Highway Administration and the Tacoma-Pierce County Health Department.
After Hart-Crowser concluded the investigation, the interagency team met for several months to determine the appropriate course of action. The team concluded that all of the material had to be removed because it contained varying amounts of contamination. WSDOT recognized that the characterization of each of the two materials would have a major impact on the remedy selected and, therefore, the cost of removal. WSDOE considered the tar extremely hazardous waste under WSDOE regulations, based on its initial tests indicating a PAH concentration of greater than one percent. The team concluded that the only feasible option was to dispose of the tar at a hazardous waste facility in Arlington, Oregon. For the oily silt and sand, which was not considered a dangerous waste, the team considered the alternatives of on-site disposal, reuse, disposal at a landfill, disposal at the Arlington hazardous waste facility, and chemical treatment. Eventually the team decided to encapsulate the oily silt and sand in vaults on the site, an option considerably cheaper than disposal at Arlington.
Construction on the site began in September, 1985. In December, 1985, WSDOT's construction contractor discovered the remains of a large gas holder filled with a mixture of tar and other material. In February, 1986, the contractor unearthed the remains of an even larger gas holder, which was also filled with tar and other material, and a small pit filled with tar. The gas holders appeared to have been cut off at some level and then filled over.
WSDOT halted construction of the highway. Hart Crowser tested samples of the material in the second gas holder and in the tar pit using the persistence testing method WSDOE had used on the original contaminated samples. Samples taken from the tar pit area contained a PAH level of greater than one percent. Samples from the second gas holder contained PAH levels under one percent. The contents of the first holder had already been shipped and were never tested.
The team met frequently during this period and concluded that WSDOT needed to dispose of the tar-like material at Arlington. The team concluded that the volume of material did not affect the disposal options and therefore decided not to reexamine the options available to it. Construction had proceeded to a point that realigning the spur was not feasible. In addition, WSDOT faced the potential of significant cost increases for delays.
WSDOT's cleanup of the site was substantially completed by October, 1986, except for ongoing monitoring. Ultimately, 15,900 tons of coal tar were shipped to the landfill in Oregon, and 26,450 tons of oily silt and sand were encapsulated in concrete vaults on site. 3 Handling and disposal of the tar cost $4,000,000 while handling and containment of the oily silt and sand cost $550,000.
On August 4, 1989, WSDOT filed this action against the defendants to recover response costs under Sec. 107 of CERCLA....
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