Liability under CERCLA includes those who "arrange" for the disposal of hazardous materials if those materials are "released" at some point into the environment (either intentionally or accidently). (CERCLA § 107(a)(3) defines an “arranger” as “any person who … arranged for disposal or treatment … of hazardous substances owned or possessed by … any party or entity, at any facility … owned or operated by another party or entity and containing such hazardous substances.”) A Federal district court in the State of Washington has held that the Washington Department of Transportation (WDOT) falls within the scope of "arranger liability" based on its actions in designing, constructing, and maintaining stormwater management systems which eventually discharged into the Commencement Bay-Nearshore Tideflats Superfund Site in Tacoma, Washington. (See United States v. Washington State Department of Transportation (WSDOT), 2010 WL 2302502 (W.D. Wash, June 7, 2010).

The decision is already being criticized in many circles, mainly for the potential impact upon any entity – private or public – involved in construction or other type of development. Every contractor, engineer, and landowner involved in stormwater management could be a PRP (CERCLA-speak for "potentially responsible party"), not to mention the highway department in every state.

The legal criticism of the decision is based on the U.S. Supreme Court's clarification in the Burlington Northern case that an "intent to dispose" of hazardous material is required for arranger liability, and that the WDOT's intent was to dispose of stormwater, not hazardous materials. Obviously this would be the response of anyone involved in a stormwater management system, but, at a basic level, it is well-known that certain stormwater management systems – especially for highway systems – will certainly pick up hazardous materials (and possibly concentrate them, which is even more troublesome).