Transportation departments discharge voluminous amounts of stormwater in the management of their highway systems.  Historically these discharges were not regulated by any pollution control standards.  Today every transportation department is regulated by the NPDES program.  As long as the transportation department complies with its NPDES permit, if the pollution level is within ranges specified by the NPDES permit, generally no liability arises for the water quality of any stormwater discharge.  Recently, however several Supreme Court decisions resulted in questions about the extent of protection from strict liability in two situations: first, the court has interpreted CERCLA as creating arranger liability for storm-water discharges in at least one case in the State of Washington.  In District court cases in the 11^th circuit, a concern has arisen that a transportation department may be liable for contaminated storm-water discharges even though it believes such discharges complied with its NPDES permit.  Because the state dot designed the storm water basins-that eventually carried contaminated water from a CERCLA site-it, was deemed an arranger.  Recently, the Supreme Court refused to rule on the issue of whether a co-permittee was held liable even though he asserted that he did not release the contaminants into the waters of the United States-which had to have been released by a co-permittee. These decisions resulted in questions about the extent of a state DOT's protection from strict liability.

Research was requested on enforcement actions taken against a transportation department regarding discharges regulated under NPDES, which it believes were within the ranges of its permit and thus in compliance.  These actions could be initiated by state environmental protection agencies, USEPA, or private citizens.  The results of any such enforcement actions could provide guidance to transportation departments in the management of their stormwater discharge programs.

This Research Results Digest analyzes the Task 1, preliminary research into whether these cases have resulted in an increase in claims against state DOTS.  The results should be beneficial to transportation risk managers, attorneys, environmental specialists, engineers and financial officials.

Status: Published as Research Results Digest 395: Claims Related to Stormwater Discharge.