|
 |
By J. Michael Sowinski |
On January 24th, 2005, in U.S. v Qwest Corp., the United States District Court for the District of Minnesota noted EPA’s obligation to register underground pump-and-treat piping with the state One Call Center. The EPA’s failure to register the underground lines seemed to weigh in, at least to some extent, on the court’s ultimate holding that the excavator did not qualify as a CERCLA “operator.”
Utility contractors had ruptured a CERCLA site’s pump-and-treat groundwater piping while excavating to install underground communication lines. EPA sought cost recovery, claiming that the utility line excavator qualified as a CERCLA site operator.
The court disagreed, and held that the utility excavator did not qualify as an operator. The court seemed to base this holding, at least to some extent, on the reasoning that the excavators “were not even aware of the existence” of the piping and that “EPA failed to register the underground water lines with the One Call Center.” But other factors weighed in, including excavation occurring in a public right of way just outside of the actual site.
The court did not clearly address whether EPA’s failure to register the lines weighed heavily in its decision. But regardless of the weight it carried, the court clearly stated, “EPA failed to register the underground water lines with the One Call Center utility locate program, as required by state law.”
Under Minnesota’s One Call law, “operator” means a person who owns or operates an underground facility. And “underground facility” means an underground line, facility, system and its appurtenances used to produce, store, convey, transmit or distribute communications, data, electricity, power, heat, gas, oil, petroleum products, water (including stormwater), steam, sewage and other similar substances.
Minnesota’s One Call law (which is similar to those in other states) seems
to require operators of cleanup-related underground components to register with
One Call.
Whether the EPA or some other party qualifies as the operator, the law seems
to require One Call registration. Indeed, failure to do so may make the operator
liable even when an excavator damages the underground components.
J. Michael Sowinski Jr., JD, EIT is an environmental law and policy analyst and environmental engineer for DPRA, Inc