Feds seek $3.5 million from Washington Department of Transportation for Foss Waterway clean-up

The federal government has gone to court to try to squeeze another $3.5 million out of the Washington State Department of Transportation for costs associated with the cleanup of Tacoma’s Thea Foss and Wheeler Osgood waterways.

In pleadings filed earlier this spring, lawyers with the Department of Justice asked a U.S. District Court judge in Tacoma to allow them to re-open a lawsuit over cleanup costs that was resolved in the federal government’s favor in 2011.

Judge Robert Bryan signed the order last week, setting the stage for more hearings on whether the state would have to pay even more money.

The Department of Transportation was ordered to pay $9.3 million to help pay the costs of cleaning up tar and toxic chemicals uncovered in the 1980s during construction of the Interstate 705 spur, court records show.

The state did not appeal that order.

In March 2013, the U.S. Environmental Protection Agency sent a letter informing the Department of Transportation that it was on the hook for an additional $3.6 million. The money being sought now would reimburse the government for legal costs.

In a recent pleading, federal lawyers said the 2011 case holds “WSDOT liable for further response costs incurred by the United States at the Thea Foss and Wheeler Osgood Waterway problem areas within the Commencement Bay Nearshore/Tideflats Superfund Site.”

That includes monitoring and litigation costs, the federal government argued.

The state agreed to pay about $95,000 in monitoring costs but has balked at paying further litigation costs, court records show. Those costs should have been covered in the initial judgment, state lawyers argued in a opposing re-opening the case.

“There is simply no credible excuse for the United States to sit on this request for millions of dollars in litigation costs for an entire three years and then attempt to amend the judgment to add those costs,” assistant state attorney general Deborah Cade wrote in pleadings.

Bryan disagreed, citing language in the 2011 judgment that states, in part, “ the liability of the defendant determined here is binding on any subsequent action or actions to recover further response costs.”

“With that action, the court clearly contemplated the possibility of further ‘action’ in this case,” according to Bryan’s order re-opening the lawsuit.